Tax Returns and Audits. (i) Saturn and each of its Subsidiaries have prepared and timely filed all material required Tax Returns relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and have been completed in accordance with applicable law. (ii) Saturn and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority. (iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn or any of its Subsidiaries, nor has Saturn 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 material Tax. (iv) No audit or other examination of any Tax Return of Saturn or any of its Subsidiaries is presently in progress, nor has Saturn or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction. (v) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business. (vi) Neither Saturn 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes. (vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could 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. (viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 3 contracts
Samples: Merger Agreement (Nuance Communications), Merger Agreement (Scansoft Inc), Merger Agreement (Scansoft Inc)
Tax Returns and Audits. (i) Saturn First Community and each of its Subsidiaries the Wholly Owned Bank have prepared and timely filed all material required Tax Returns with the appropriate governmental entity in all jurisdictions in which such Tax Returns are required to be filed relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries First Community or their respective operations, and such the Wholly Owned Bank. Such Tax Returns, as of the time of filing were true and correct in all material respects and Returns have been prepared and completed in accordance with applicable lawLegal Requirements in all material respects.
(ii) Saturn Each of First Community and each of its Subsidiaries have the Wholly Owned Bank has duly and timely paid paid, or caused to be duly and timely paid, all material Taxes that are due and payable by it (whether or not shown or required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment shown on any Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authorityReturn).
(iii) Neither Saturn nor any Each of its Subsidiaries First Community and the Wholly Owned Bank has been delinquent duly and timely withheld or deducted all Taxes and other amounts required by applicable laws to be withheld or deducted by it, including Taxes and other amounts required to be deducted or withheld by it in the payment respect of any material Taxamount paid or credited, nor is there or deemed to be paid or credited, by it to or for the account or benefit of any material Tax deficiency outstandingPerson, assessed including any former or proposed against Saturn current Employees, officers or directors and any non-resident Person, and has duly and timely remitted, or will duly and timely remit, as applicable, to the appropriate governmental entity such taxes and other amounts required by applicable laws to be remitted by it, for all periods ending on or prior to the Closing Date.
(iv) Each of its SubsidiariesFirst Community and the Wholly Owned Bank has not entered into any agreement or other arrangement, nor has Saturn or any of its Subsidiaries executed any waiver waiver, providing for any extension of time, including any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax, and each of First Community and the Wholly Owned Bank is not the beneficiary of any such extension of time, which will be outstanding and in effect on the Closing Date, within which (A) to file any Tax Return covering any Taxes for which First Community or the Wholly Owned Bank may be liable; (B) to file any elections, designations or similar filings relating to Taxes for which First Community or the Wholly Owned Bank may be liable; (C) First Community or the Wholly Owned Bank may be required to pay or remit Taxes or amounts on account of Taxes; or (D) any governmental entity may assess, reassess, or collect Taxes for which First Community or the Wholly Owned Bank may be liable.
(ivv) No audit or other examination of any Tax Return of Saturn First Community or any of its Subsidiaries the Wholly Owned Bank Community is presently in progress, nor has Saturn First Community or any of its Subsidiaries the Wholly Owned Bank been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) There are no liens on the assets of First Community or the Wholly Owned Bank relating to or attributable to Taxes, except for inchoate tax liens that are attached by operation of law.
(vii) Neither Saturn First Community nor the Wholly Owned Bank has been at any time a “United States Real Property Holding Corporation” within the meaning of its Subsidiaries Section 897(c)(2) of the Code.
(viii) Except as set forth on Schedule 4.14(a)(viii), First Community or the Wholly Owned Bank (1) has (a) ever never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income consolidated, combined, unitary or similar Tax Return (other than a group the common parent of which was SaturnFirst Community), (b2) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries not owe any amount under any such agreement and Tax sharing, indemnification, allocation or similar agreement, (c3) has never been a party to or bound by any Tax sharing, indemnification, allocation or similar agreement, contract plan or arrangement allocating or sharing the payment of, indemnity for or liability for Taxes that will not be terminated on the Closing Date without any future liability to First Community, the Minority Bank or any of their respective subsidiaries, or (4) has no liability for the Taxes of any person Person (other than Saturn or any of its SubsidiariesFirst Community) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and otherwise.
(dix) No claim in writing has ever been made by any governmental entity in a jurisdiction in which First Community or the Wholly Owned Bank does not file Tax Returns that First Community or the Wholly Owned Bank is or may be subject to Taxes in such jurisdiction.
(x) Neither First Community nor the Wholly Owned Bank has entered into, been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
otherwise participated (vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” directly or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (xindirectly) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a any “plan” or “series of related transactionslisted transaction” within the meaning of Treasury Regulations Section 355(e1.6011-4(b)(2) or any other “reportable transaction” within the meaning of the Code in conjunction with the Merger.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § Treasury Regulations Section 1.6011-4(b) or in a any transaction that is requiring disclosure under similar provisions of state, local or foreign Tax laws.
(xi) Neither First Community nor the same as or substantially similar to one Wholly Owned Bank has applied for any Tax ruling which, if granted, would affect the computation of Tax liability of the types of transactions that First Community or the Internal Revenue Service Wholly Owned Bank for any periods (or portions thereof) beginning on or after the Closing Date.
(xii) Neither First Community nor the Wholly Owned Bank has determined agreed to be a tax avoidance transaction and identified by notice, regulationmake, or is required to make, any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise.
(xiii) There is no contract covering any current or former employee or current or former independent contractor of First Community or the Wholly Owned Bank that, individually or collectively, could give rise to a payment by First Community or the Wholly Owned Bank (or the provision by First Community or the Wholly Owned Bank of any other form benefits such as accelerated vesting) that would not be deductible by First Community or the Wholly Owned Bank by reason of published guidance as Code Section 280G or subject to an excise Tax under Code Section 4999. Neither First Community nor the Wholly Owned Bank have any indemnity obligations for any excise Taxes imposed under Code Section 4999 or for any Taxes of any employee, including the Taxes under Code 409A.
(xiv) First Community and the Wholly Owned Bank have disclosed on their respective Tax Returns all positions taken therein that could reasonably give rise to a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)substantial understatement of Taxes within the meaning of Code Section 6662.
Appears in 3 contracts
Samples: Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.)
Tax Returns and Audits. (i) Saturn Nova and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports and any amendments thereto (“Tax Returns Returns”) relating to any and all Taxes concerning or attributable to SaturnNova, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Nova and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn Nova and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn Nova and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn Nova nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn Nova or any of its Subsidiaries, nor has Saturn Nova 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 material Tax.
(iv) No audit or other examination of any Tax Return of Saturn Nova or any of its Subsidiaries is presently in progress, nor has Saturn Nova or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn Nova or any of its Subsidiaries has been proposed formally or, to the knowledge of SaturnNova, informally by any Tax authority to SaturnNova, any of its Subsidiaries or any representative thereof. Neither Saturn Nova nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn Nova or its Subsidiaries do not file Tax Returns that Saturn Nova or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Nova nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to SaturnNova), which have not been accrued or reserved on the Saturn Nova Balance Sheet in accordance with GAAP, and neither Saturn Nova nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Nova Balance Sheet other than in the ordinary course of business.
(vi) Neither Saturn Nova 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 SaturnNova), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn Nova or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn Nova or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that that, to the knowledge of Saturn Nova, could be treated as a partnership for Tax purposes.
(vii) Neither Saturn Nova nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could 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.
(viii) Neither Saturn Nova nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 3 contracts
Samples: Merger Agreement (Nuance Communications), Merger Agreement (Scansoft Inc), Merger Agreement (Scansoft Inc)
Tax Returns and Audits. (i) Saturn and each To the extent relevant to the Acquired Assets or the Business, as of its Subsidiaries the Closing Date, Seller will have prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Saturn, Seller or its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law.
(ii) Saturn and each To the extent failure to do so would adversely impact Buyer, the Acquired Assets, Buyer’s use of its Subsidiaries the Acquired Assets or operation of the Business, as of the Closing Date, Seller (A) will have timely paid all material Taxes it is required to be paid. With pay and (B) will have withheld with respect to their employeesits employees all federal, Saturn state and each of its Subsidiaries have timely paid or withheld all federal foreign income taxes and state income taxessocial security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn nor any To the extent failure to do so would adversely impact Buyer, the Acquired Assets, Buyer’s use of its Subsidiaries the Acquired Assets or operation of the Business, Seller has not been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn or any of its SubsidiariesSeller, nor has Saturn or any of its Subsidiaries Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No To the extent relevant to the Acquired Assets or the Business, no audit or other examination of any Tax Return of Saturn or any of its Subsidiaries Seller is presently in progress, nor has Saturn or any of its Subsidiaries Seller been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor Seller does not have and knows of no basis for the assertion of any of its Subsidiaries has claim for any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), for which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date Buyer would become liable as a result of the Saturn Balance Sheet other than in transactions contemplated by this Agreement and the ordinary course of businessCollateral Agreements.
(vi) Neither Saturn nor any of its Subsidiaries has There are (aand immediately following the Closing there will be) ever been a member of an affiliated group (within no Liens on the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturn), (b) ever been a party Acquired Assets relating to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party attributable to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesTaxes.
(vii) Neither Saturn nor Seller knows of no basis for the assertion of any of its Subsidiaries has constituted either a “distributing corporation” claim relating or a “controlled corporation” attributable to Taxes which, if adversely determined, would result in a distribution of stock intended to qualify for tax-free treatment under Section 355 of any Lien on the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerAcquired Assets.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sirenza Microdevices Inc), Asset Purchase Agreement (Sirenza Microdevices Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.8: ----------------------
(i) Saturn Computervision and each of its Subsidiaries as of the Effective Time will have prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") then due relating to any and all Taxes concerning or attributable to Saturn, Computervision or such Subsidiary or its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable lawlaw or, with respect to any Taxes payable, an adequate reserve has been established on the Computervision Balance Sheet.
(ii) Saturn Computervision and each of its Subsidiaries as of the Effective Time: (A) will have timely paid or accrued all material Taxes required to be paid. With set forth on its Returns, and (B) will have withheld and paid (or will pay at the time required) with respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld employees all federal and state income taxes, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn Computervision nor any of its Subsidiaries has been is delinquent in any material respect in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn Computervision or any of its Subsidiaries, nor has Saturn Computervision or any of its Subsidiaries Subsidiary executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No Other than the audits set forth in the Computervision Disclosure Schedule, no audit or other examination of any Tax Return of Saturn or any of its Subsidiaries Computervision is presently currently in progress, nor has Saturn Computervision or any of its Subsidiaries Subsidiary been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of Computervision and its Subsidiaries has did not have, as of September 28, 1997, any liabilities liabilities, whether asserted or unasserted, contingent or otherwise, for unpaid federal, state, local and foreign Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet against in accordance with GAAPGAAP on the Computervision Balance Sheet, and neither Saturn Computervision nor any of its Subsidiaries has incurred any liability for Taxes such liabilities since the such date of the Saturn Balance Sheet other than except in the ordinary course of businessbusiness and consistent with past practices.
(vi) Computervision has made available to Parametric copies of all federal and state income and all state sales and use Tax Returns for all periods since December 31, 1987.
(vii) There are (and as of immediately following the Effective Date there will be) no liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") of a material nature on the assets of Computervision or any Subsidiary relating to or attributable to Taxes, except for Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings.
(viii) Neither Saturn Computervision 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 Computervision or any Subsidiary.
(ix) None of Computervision's or its Subsidiaries' assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Computervision 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.
(xi) Neither Computervision nor any of its Subsidiaries has (afiled any consent agreement under Section 341(f) ever been a member of an affiliated group (within the meaning Code or agreed to have Section 341(f)(2) of the Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturn), (b) ever been a party apply to any Tax sharing, indemnification disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Computervision or allocation agreement, such Subsidiary.
(xii) Neither Computervision nor does Saturn or any of its Subsidiaries is a party to a tax sharing or allocation agreement nor does Computervision or any Subsidiary owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesagreement.
(viixiii) Neither Saturn Computervision nor any of its Subsidiaries is or has constituted either a “distributing corporation” or a “controlled corporation” been at any time during the period specified in a distribution of stock intended to qualify for tax-free treatment under Section 355 897(c)(1)(A)(ii) of the Code (x) in the two years prior to the date of this Agreement or (y) in Code, a distribution that otherwise could constitute part of a “plan” or “series of related transactions” "United States real property holding corporation" within the meaning of Section 355(e897(c)(2) of the Code.
(xiv) For a period of two (2) years following each reported ownership change, as defined in Section 382(g) of the Code, Computervision and its Subsidiaries have continued a significant line of their historic business within the meaning of Treasury Regulation Section 1.368-1(d)(3).
(xv) Neither Computervision nor any Subsidiary has agreed to, or is required to, make any adjustments under Section 481(c) of the Code by reason of a change in conjunction with the Mergeraccounting method or otherwise.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Parametric Technology Corp), Agreement and Plan of Reorganization (Computervision Corp /De/)
Tax Returns and Audits. (i) Saturn As of the Effective Time, Brands and each of its Subsidiaries subsidiaries will have prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to Saturn, Brands or its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn As of the Effective Time, Brands and each of its Subsidiaries subsidiaries (A) will have timely paid all material Taxes it is required to be paid. With pay and will have withheld with respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld employees all federal and state income taxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees (B) will have been timely paid over accrued on the Brands Financial Statements all Taxes attributable to the appropriate Taxing authorityperiods covered by the Brands Financial Statements and will not have incurred any liability for Taxes for the period prior to the Effective Time other than in the ordinary course of business.
(iii) Neither Saturn Brands nor any of its Subsidiaries subsidiaries has not been delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn Brands or any of its Subsidiariessubsidiaries, nor has Saturn Brands or any of its Subsidiaries subsidiaries 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 Saturn Brands or any of its Subsidiaries subsidiaries is presently in progress, nor has Saturn Brands or any of its Subsidiaries subsidiaries been notified of any request for such an audit or other examination. .
(v) No adjustment relating to any Tax Return Returns filed by Saturn Brands or any of its Subsidiaries subsidiaries has been proposed formally or, to the knowledge of Saturn, or informally by any Tax authority to Saturn, any of Brands or its Subsidiaries subsidiaries or any representative thereof. .
(vi) Neither Saturn Brands nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has subsidiaries have any liabilities for unpaid federal, state, local and foreign Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet against in accordance with GAAPGAAP on the Brands Financial Statements, whether asserted or unasserted, contingent or otherwise, and neither Saturn Brands nor any of its Subsidiaries has subsidiaries have incurred any liability for Taxes since the date of the Saturn Balance Sheet Brands Financial Statements other than in the ordinary course of business.
(vivii) Brands and its subsidiaries have made available to USA Dealers or its legal counsel, copies of all foreign, federal and state income and all state sales and use Returns for Brands and its subsidiaries filed for all periods since its inception.
(viii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of Brands or its subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(ix) Neither Saturn Brands nor the Brands Principal Stockholders have knowledge of any basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of Brands.
(x) None of Brands' or its subsidiaries assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(xi) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Brands or its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible by Brands or its subsidiaries as an expense under applicable law.
(xii) Neither Brands nor any of its Subsidiaries has subsidiaries have 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) ever been a member asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by Brands or its subsidiaries.
(within the meaning xiii) Neither Brands nor any of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturn), (b) ever been its subsidiaries is a party to any Tax tax sharing, indemnification or allocation agreement, agreement nor does Saturn Brands or any of its Subsidiaries subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesagreement.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could 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.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Merger Agreement (Usa Dealers Auction Com Inc), Merger Agreement (Usa Dealers Auction Com Inc)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have (a) prepared and timely filed all material required Tax Returns returns, estimates, amendments, information statements, elections, forms, transfer pricing studies and reports, and any attachments, appendices or addenda thereto (“Returns”) relating to any and all Taxes concerning or attributable to Saturnthe Company, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and Returns have been prepared and completed in accordance with applicable law, (b) timely paid all Taxes required to be paid, whether or not shown to be due on such Returns and (c) all Tax records required to be maintained by the Company or any of its Subsidiaries have been properly maintained and are up to date.
(ii) Saturn The Company and each of its Subsidiaries have timely paid all material Taxes required to be paid. With or withheld with respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act Employees and other material third parties and any related Person, all income Taxes, social security charges and similar fees and other Taxes required to be paid or withheld. Furthermore, and have timely paid any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid Taxes over to the appropriate Taxing authorityauthorities.
(iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor There is there any material no Tax deficiency outstanding, assessed or proposed against Saturn the Company or any of its Subsidiaries, nor has Saturn 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 material Tax.
(iv) No To the Knowledge of the Sellers, no audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified of any request for such an audit or other examination.
(v) Neither the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes as of June 30, 2007, which have not been accrued or reserved on the Current Balance Sheet (for the avoidance of doubt the Current Balance Sheet should for the purposes of this clause include all Taxes for which the Company or its Subsidiaries would have been liable had their financial year ended on June 30, 2007), whether asserted or unasserted, contingent or otherwise and neither the Company nor any of its Subsidiaries will be liable for any additional Taxes pertaining to the period before December 31, 2006. Neither the Company nor any of its Subsidiaries has 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 Purchaser or its legal counsel copies of all Returns for the Company and its Subsidiaries filed for all periods since its 2000 fiscal year.
(vii) There are (and immediately following the Closing there will be as a result of the transactions contemplated by this Agreement) 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) Neither the Company nor any of its Subsidiaries (a) is or has ever been a member of a Consolidated Group for income Tax purposes (other than a group the common parent of which was the Company), (b) is currently a party to any Tax sharing, indemnification or allocation agreement, (c) has any liability for the Taxes of any person (other than Company or any of its Subsidiaries) as a result of being or ceasing to be included in a Consolidated Group as a transferee or successor, by contract or agreement, by operation of law or otherwise, except for liabilities for certain Taxes of certain employees in connection with their employment by the Company or its Subsidiaries or liabilities for property, sales and use, occupancy or similar taxes under commercial agreements arising in the Ordinary Course of Business and (d) has ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) The tax basis of the Company and its Subsidiaries in their assets for purposes of determining future amortization and depreciation is accurately reflected or derivable from the books and records of the Company and its Subsidiaries.
(x) No adjustment relating to any Tax Return filed by Saturn the Company or any of its Subsidiaries has been proposed formally or, to the knowledge Knowledge of Saturnthe Sellers, informally by any Tax authority to Saturn, the Company or any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vxi) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) Neither Saturn 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could 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.
(viii) Neither Saturn Company nor any of its Subsidiaries has engaged in a “reportable transaction under Treas. Reg. § transaction” as set forth in Treasury Regulation Section 1.6011-4(b) ), or in 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 Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xii) Neither the Company nor any of its Subsidiaries has been subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a permanent establishment in that jurisdiction. No claim has ever been made by any Governmental Entity that the Company or its Subsidiaries is or may be subject to taxation in a jurisdiction where the Company and its Subsidiaries do not file Returns.
(xiii) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from taxable income as a result of (a) any change in method of accounting prior to the Closing Date, (b) closing agreement with any Tax Authority executed prior to the Closing Date, (c) installment sale or open transaction disposition prior to the Closing Date or (d) prepaid amount received prior to the Closing Date.
(xiv) The Company has provided to Purchaser all documentation relating to, and is in full compliance with all terms and conditions of, any Tax exemption, Tax holiday or other Tax reduction agreement or order (“Tax Incentive”) with respect to the Company or 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.
(xv) The Company has in its possession for the purpose of claiming any foreign Tax credits official foreign receipts for any Taxes paid by it or any of its Subsidiaries to any foreign Tax authorities.
(xvi) All transactions and agreements entered into by the Company with any of its Subsidiaries or any of the Sellers and all transactions and agreements entered into by any of the Subsidiaries with the Company, any other Subsidiary or any of the Sellers have been made on terms and conditions which do not in any way deviate from what would have been agreed between independent parties (i.e., on an arm’s length basis).
(xvii) All losses for Tax purposes incurred by the Company or any of its Subsidiaries are operating losses and as of the Closing Date are available to be carried forward and set off against income in succeeding periods without limitation except for any such limitation imposed directly as a result of the transactions contemplated by this Agreement, or changes in applicable laws after the date of this Agreement.
Appears in 2 contracts
Samples: Share Transfer Agreement, Share Transfer Agreement (Dolby Laboratories, Inc.)
Tax Returns and Audits. (i) Saturn Lanacom and each the Lanacom Subsidiaries as of its Subsidiaries the Closing Time will have prepared and timely filed all material required Tax Returns federal, provincial, state and local Canadian and foreign returns, declarations, remittances, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning imposed on or assessed with respect to or measured by or charged against or attributable to Saturn, its Subsidiaries Lanacom or their respective operations, and such Tax Returns, as any of the time of filing were Lanacom Subsidiaries, such Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw and no material facts or facts have been omitted from such Returns which would make any of them misleading.
(ii) Saturn Lanacom and each the Lanacom Subsidiaries as of its Subsidiaries the Closing Time: (A) will have timely paid all material Taxes shown on the Returns, all Taxes due and payable by them and all Taxes assessed or reassessed against them and (B) will have withheld/collected and remitted in a timely manner any Taxes required to be paid. With respect to their employees, Saturn withheld/collected and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authorityremitted.
(iii) Neither Saturn Lanacom nor any of its the Lanacom Subsidiaries has have been delinquent in the payment of any material Tax, nor . There is there any material no Tax deficiency outstanding, assessed or proposed against Saturn Lanacom or any of its the Lanacom Subsidiaries, nor has Saturn have Lanacom or any of its the Lanacom Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material TaxTax that is still in effect.
(iv) No Neither Lanacom nor any of the Lanacom Subsidiaries have received notice of any audit or other examination of any Tax Return of Saturn relating to Taxes or any of its Subsidiaries is presently in progress, nor has Saturn or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating examination and there are no claims, actions, suits litigation, arbitrations, proceedings or appeals pending, proposed or threatened in respect of Taxes imposed on or assessed with respect to any Tax Return filed or measured by Saturn or charged against or attributable to Lanacom or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdictionLanacom Subsidiaries.
(v) Neither Saturn nor any of its Lanacom and the Lanacom Subsidiaries has are accrual basis taxpayers and do not have any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), not yet due which have not been accrued or reserved on the Saturn Balance Sheet against in accordance with GAAPCanadian GAAP on the Lanacom Balance Sheet, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businesswhether asserted or unasserted, contingent or otherwise.
(vi) There are no liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") on the assets of Lanacom or any of the Lanacom Subsidiaries relating to or attributable to Taxes other than Liens for taxes not yet due and payable.
(vii) Neither Saturn Lanacom nor any of its the Lanacom 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 Saturn), (b) ever been are a party to any Tax a tax sharing, indemnification or allocation agreement, agreement (other than this Agreement) nor does Saturn Lanacom or any of its the Lanacom Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Mergeragreement.
(viii) Lanacom and the Lanacom Subsidiaries have charged, collected and remitted on a timely basis all Taxes as required under applicable law on any sale, supply or delivery whatsoever made by each of them.
(ix) There are no circumstances existing which could result in the application of Section 78 of the Income Tax Act (Canada) or any equivalent provincial provision to Lanacom or any of the Lanacom Subsidiaries.
(x) None of Sections 80 through to and including Section 80.04 of the Income Tax Act (Canada) or any equivalent provincial provisions have applied to Lanacom or any of the Lanacom Subsidiaries.
(xi) Neither Saturn Lanacom nor any of the Lanacom Subsidiaries have acquired an asset from a person with which it deals at non-arm's length for consideration greater than the fair market value of such asset at the time of its acquisition.
(xii) Neither Lanacom nor any of the Lanacom Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(bhave ever entered into an agreement contemplated by Section 191.3 of the Income Tax Act (Canada) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)any equivalent provincial provision.
Appears in 2 contracts
Samples: Agreement and Plan of Acquisition (Backweb Technologies LTD), Agreement and Plan of Acquisition (Backweb Technologies LTD)
Tax Returns and Audits. (i) Saturn Parent and each of its Subsidiaries have prepared and timely filed all material required Tax Returns relating to any and all Taxes concerning or attributable to SaturnParent, its Subsidiaries or their respective operations, and such . Such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and correct, have been completed in accordance with applicable lawlaw and were timely filed, except, in each case, as would not be material to Parent.
(ii) Saturn Parent and each of its Subsidiaries have timely paid all material Taxes required to be paid. With paid and withheld with respect to their employees, Saturn employees or other third parties and each of its Subsidiaries have timely paid or withheld over to the appropriate Taxing authority all federal Taxes and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and any other material Taxes amounts required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been Such Taxes were timely paid over except as would not be material to the appropriate Taxing authorityParent.
(iii) Neither Saturn Parent nor any of its Subsidiaries has been is currently delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or or, to the Knowledge of Parent, proposed against Saturn Parent or any of its Subsidiaries, nor has Saturn Parent or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending extension of the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax Return of Saturn Parent or any of its Subsidiaries is presently in progress, nor has Saturn Parent or any of its Subsidiaries been notified of any request for such an audit or other examination. No outstanding adjustment relating to any Tax Return filed by Saturn Parent or any of its Subsidiaries has been proposed formally or, to the knowledge Knowledge of SaturnParent or any of its Subsidiaries, informally by any Tax tax authority to SaturnParent, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Parent nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), as of the date of the Parent Balance Sheet which have not been accrued or reserved on the Saturn Parent Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise and neither Saturn Parent nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Parent Balance Sheet other than in the ordinary course of business, consistent with past practice.
(vi) There are no Liens on the assets of Parent or any of its Subsidiaries relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable. To the Knowledge of Parent, there is no basis for the assertion of any material claim relating or attributable to Taxes, which, if adversely determined, would result in any Lien for Taxes on the assets of Parent or any of its Subsidiaries.
(vii) Neither Saturn Parent nor any of its Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Parent or any of its Subsidiaries.
(viii) Neither Parent 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.
(ix) Neither Parent 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 SaturnParent), (b) ever been is a party to any Tax sharing, indemnification or allocation agreementagreement (other than between Parent and any of its Subsidiaries), nor does Saturn Parent or any of its Subsidiaries owe any amount under any such agreement and agreement, (c) has any material liability for the Taxes of any person (other than Saturn Parent or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and otherwise, or (d) ever been is a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viix) Neither Saturn Parent nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code Code) in conjunction with the Company Merger.
(viiixi) Neither Saturn Parent nor any of its Subsidiaries Affiliates has engaged in taken or agreed to take any action that would prevent the Company Merger from qualifying as a reportable transaction under Treas. Reg. § 1.6011-4(breorganization within the meaning of Section 368(a) or in a transaction that is the same as or substantially similar to one of the types Code. Parent has no Knowledge of transactions any agreement, plan, fact or other circumstance that would prevent the Company Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(xii) Parent has obtained a ruling from the United States Internal Revenue Service (the “IRS”) that the distribution of Source Common Stock to the stockholders of Parent (which will be effected through the Parent Merger) will qualify as a tax-free distribution under Section 355 of the Code. The information, representations and statements submitted to the IRS by Parent in obtaining such ruling were at the time of submission and, as of the date hereof, are, materially true and correct, and neither Parent nor any of its Affiliates has determined to be a tax avoidance transaction and identified by notice, regulationtaken, or other form of published guidance as a listed transactionagreed to take, as set forth in Treas. Reg. § 1.6011-4(b)(2)or will knowingly take any action that would make any material representation given to the IRS for such IRS ruling materially untrue.
Appears in 2 contracts
Samples: Merger Agreement (Palm Inc), Agreement and Plan of Reorganization (Palm Inc)
Tax Returns and Audits. (ia) Saturn and each To the extent relevant to the Acquired Assets or the Business, as of its Subsidiaries the Closing Date, Tekelec Group will have prepared and timely filed for all material periods for which the statute of limitations has not expired all required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to Saturn, Tekelec Group or its Subsidiaries or their respective operationsoperations and that my give rise to transferee tax liability, and such Tax ReturnsReturns are or will be true, as of the time of filing were true correct and correct complete in all material respects and have been or will be completed in all material respects in accordance with applicable law.
(b) As of the Closing Date, Tekelec Japan and Seller (to the extent failure to do so by Seller would adversely impact Buyer, the Acquired Assets, Buyer's use of the Acquired Assets or operation of the Business)
(i) will have paid for all periods for which the statute of limitations has not expired all Taxes it is required to pay and (ii) Saturn and each of its Subsidiaries will have timely paid all material Taxes required to be paid. With withheld with respect to their employeesits employees all federal, Saturn state and each of its Subsidiaries have timely paid or withheld all federal foreign income taxes and state income taxessocial security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iiic) Neither Saturn nor any Each of its Subsidiaries has Tekelec Japan and Seller (to the extent failure to do so by Seller would adversely impact Buyer, the Acquired Assets, Buyer's use of the Acquired Assets or operation of the Business) have not been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn Seller or any of its SubsidiariesTekelec Japan, nor has Saturn Seller or any of its Subsidiaries Tekelec Japan executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(ivd) No To the extent relevant to the Acquired Assets or the Business, no audit or other examination of any Tax Return of Saturn Seller or any of its Subsidiaries Tekelec Japan is presently in progress, nor has Saturn have Seller or any of its Subsidiaries Tekelec Japan been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any .
(e) Seller does not have and knows of its Subsidiaries has been proposed formally or, to no reasonable basis for the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified assertion of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has for any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), for which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date Buyer would become liable as a result of the Saturn Balance Sheet other than in the ordinary course of businesstransactions contemplated by this Agreement.
(vif) Neither Saturn nor any of its Subsidiaries has There are (aand immediately following the Closing there will be) ever been a member of an affiliated group (within no Liens on the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturn), (b) ever been a party Acquired Assets relating to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party attributable to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesTaxes.
(viig) Neither Saturn nor Seller knows of no basis for the assertion of any of its Subsidiaries has constituted either a “distributing corporation” claim relating or a “controlled corporation” attributable to Taxes that, if adversely determined, would result in a distribution of stock intended to qualify for tax-free treatment under Section 355 of any Lien on the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerAcquired Assets.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Catapult Communications Corp), Asset Purchase Agreement (Tekelec)
Tax Returns and Audits. (i) Saturn and each of its Subsidiaries have prepared and timely filed all material required Tax Returns relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Pathlore and each of its Subsidiaries have timely paid filed all material federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to Taxes required to be paidfiled by Pathlore and each of its Subsidiaries with any Tax authority. With respect to their employees, Saturn Pathlore and each of its Subsidiaries have timely paid all Taxes shown to be due on such Returns.
(ii) Pathlore and each of its Subsidiaries as of the Effective Time will have withheld or withheld paid, as the case may be, with respect to its employees, all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other material Taxes required to be paid withheld or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritypaid.
(iii) Neither Saturn Pathlore nor any of its Subsidiaries has been is delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn Pathlore or any of its Subsidiaries, nor has Saturn Pathlore 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 Return of Saturn Pathlore or any of its Subsidiaries by any Tax authority is presently in progress, nor has Saturn Pathlore or any of its Subsidiaries been notified of any request for such an audit or other examination. .
(v) No adjustment relating to any Tax Return Returns filed by Saturn Pathlore or any of its Subsidiaries has been proposed in writing formally or, to the knowledge Knowledge of SaturnPathlore, informally by any Tax authority to Saturn, Pathlore or any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vvi) Neither Saturn Pathlore nor any of its Subsidiaries has any liabilities liability for any unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have has not been accrued for or reserved on the Saturn Pathlore 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 December 31, 2004 in connection with the operation of the business of Pathlore and neither Saturn its Subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which Pathlore or any of its Subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Pathlore 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 of the Code. There is no contract, agreement, plan or arrangement to which Pathlore 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) Pathlore has made available to SumTotal or its legal counsel or accountants copies of all Returns of Pathlore and any of its Subsidiaries requested by SumTotal.
(ix) There are (and immediately following the Effective Time there will be) no Liens on the assets of Pathlore or any of its Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. To the Knowledge of Pathlore, there is no reasonable basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien for Taxes on the assets of Pathlore or any of its Subsidiaries.
(x) Neither Pathlore nor any of its Subsidiaries is or has been at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xi) Neither Pathlore nor any of its Subsidiaries has incurred any liability for Taxes since within the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) Neither Saturn nor any of its Subsidiaries has past five years (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax tax Return (other than a group the common parent of which was SaturnPathlore), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn Pathlore or any of its Subsidiaries owe any amount under any such agreement and agreement, (c) any assumed liability for the Taxes of any person (other than Saturn Pathlore or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixii) Neither Saturn Pathlore nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viiixiii) Neither Saturn Pathlore nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xiv) None of Pathlore’s or its Subsidiaries’ assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xv) Neither Pathlore nor any of its Subsidiaries has ever (i) made an election under Section 1362 of the Code to be treated as an S corporation for federal income tax purposes or (ii) made a similar election under any comparable provision of any federal, state, local, domestic or foreign tax law.
(xvi) No governmental taxing authority in a jurisdiction where Pathlore or any of its Subsidiaries does not file tax returns has asserted that Pathlore or any of its Subsidiaries, as the case may be, is or may be subject to taxation by that jurisdiction.
(xvii) Neither Pathlore nor any of its Subsidiaries has agreed to, nor is it required to, make any adjustment under Section 481 of the Code by reason of a change in accounting method or otherwise prior to the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Sumtotal Systems Inc), Agreement and Plan of Merger (Sumtotal Systems Inc)
Tax Returns and Audits. (i) Saturn VGX and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports ("Tax Returns Returns") relating to any and all Taxes concerning or attributable to Saturn, VGX or its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true Returns are accurate and correct complete in all material respects and respects. VGX and/or its Subsidiaries have been completed in accordance with applicable lawpaid or accrued all Taxes shown on such Tax Returns.
(ii) Saturn VGX and each of its Subsidiaries have timely paid all material Taxes required to be paid. With paid and withheld with respect to their employees, Saturn employees (and each of its Subsidiaries have timely paid or withheld over to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor There is there any material no Tax deficiency outstanding, assessed or proposed against Saturn VGX or any of its Subsidiaries, and neither VGX nor any Subsidiary is a party to any action or proceeding for the assessment or collection of Taxes, nor has Saturn VGX or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax Return of Saturn VGX or any of its Subsidiaries is presently in progress, nor has Saturn VGX or any of its Subsidiaries been notified of (in writing) that any request for Taxing authority is threatening or planning to initiate such an audit or other examination. No adjustment relating to any Tax Return filed written claim has ever been asserted by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority a Governmental Entity in a jurisdiction where Saturn VGX or its Subsidiaries do any Subsidiary does not file Tax Returns that Saturn or any of its Subsidiaries are such entity is or may be subject to taxation by that jurisdiction.
(v) Neither Saturn As of the date of the VGX Balance Sheet, neither VGX nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn)Taxes, which have not been accrued or reserved on the Saturn VGX Balance Sheet in accordance with US GAAP, and since the date of the VGX Balance Sheet, neither Saturn VGX nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) There are no Liens (except for Permitted Liens) on the assets of VGX or any of its Subsidiaries relating to or attributable to Taxes.
(vii) Neither Saturn VGX 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.
(aviii) Neither VGX nor any of its Subsidiaries (A) has ever been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was SaturnVGX), (bB) ever been owes any amount under, or is a party to to, any Tax sharing, indemnification or allocation agreement, nor does Saturn agreement (other then between or among VGX and any of its Subsidiaries owe any amount under any such agreement and Subsidiaries), (cC) has any liability for the Taxes of any person (other than Saturn VGX or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesotherwise.
(viiix) Neither Saturn VGX nor any of its Subsidiaries has constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution that which could otherwise could constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiix) VGX has made available to Inovio true and complete copies of (i) income and sales tax audit reports, statements of deficiencies, and closing or other agreements relating to VGX's or any Subsidiary's Taxes, and (ii) all federal, state and local income or franchise tax returns for VGX and all its Subsidiaries for all periods ending on or before the date of this Agreement.
(xi) There are no Tax-sharing agreements or similar arrangements (including Tax indemnity arrangements) with respect to or involving VGX or any Subsidiaries other than this Agreement.
(xii) Neither Saturn VGX nor any Subsidiary has participated in (i) any "tax shelter" within the meaning of its Subsidiaries has engaged Section 6111 (as in effect prior to the enactment of P.L. 108-357 or any comparable laws of jurisdictions other than the United States), or (ii) a reportable transaction as described in U.S. treasury regulations promulgated under Treas. Reg. § 1.6011-4(bSection 6011 of the Code or any comparable laws of jurisdictions other than the United States.
(xiii) Based on good faith interpretations of Code Section 409A and IRS guidance thereunder, to VGX's Knowledge, neither VGX nor any Subsidiary has, since October 3, 2004, (i) granted to any person an interest in a nonqualified deferred compensation plan (as defined in Code Section 409A(d)(1)) which interest has been or, upon the lapse of a substantial risk of forfeiture with respect to such interest, will be subject to the Tax imposed by Code Sections 409A(a)(1)(B) or (b)(4)(A), or (ii) modified the terms of any nonqualified deferred compensation plan in a transaction manner that is could cause an interest previously granted under such plan to become subject to the same as Tax imposed by Code Sections 409A(a)(1)(B) or substantially similar (b)(4).
(xiv) Neither VGX nor any Subsidiary will be required to one include any material item of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulationincome in, or other form exclude any material item of published guidance deduction from, its taxable income for any taxable period (or portion thereof) ending after the Closing Date as a listed transactionresult of any: (i) adjustment under Code Section 481 with respect to a change in method of accounting for a taxable period ending on prior to the Closing Date, (ii) "closing agreement" as set forth described in Treas. Reg. § 1.6011-4(b)(2Code Section 7121 (or any corresponding state, local or foreign Legal Requirement), (iii) intercompany transactions or any excess loss account described in the United States Treasury Regulations under Code Section 1502 (or any corresponding state, local or foreign Legal Requirements that, in either case, is attributable to transactions or other events occurring prior to the Closing Date), (iv) installment sale or open transaction disposition made on or prior to the Closing Date or (v) prepaid amount received on or prior to the Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (Inovio Biomedical Corp), Agreement and Plan of Merger (Inovio Biomedical Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.16 hereto:
(i) Saturn The Company and each of its Subsidiaries have prepared and timely filed all material required Tax Returns relating 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 to the Company and its Subsidiaries. The Company and its Subsidiaries have paid all Taxes concerning or attributable shown to Saturn, its Subsidiaries or their respective operations, be due and payable on such Tax Returns, as of the time of filing were true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn All material Taxes that the Company and each of its Subsidiaries are required by law to withhold or collect have timely paid all material Taxes required to be paid. With respect to their employeesbeen duly withheld or collected, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authorityproper governmental authorities to the extent due and payable.
(iii) Neither Saturn nor any of The Company and its Subsidiaries has have not been delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or proposed against Saturn or any of its Subsidiaries, nor has Saturn have 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 Taxrespects 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 Saturn or any of the Company and its Subsidiaries by any Tax authority is presently in progress, nor has Saturn the Company or any of its Subsidiaries Subsidiary been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Tax Return Returns filed by Saturn the Company or any of its Subsidiaries Subsidiary has been proposed in writing, formally oror informally, to the knowledge of Saturn, informally by any Tax authority to Saturn, the Company or any of its Subsidiaries Subsidiary or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vvi) Neither Saturn nor any of The Company and its Subsidiaries has have no material liability for any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued for or reserved on the Saturn Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements, and neither Saturn nor any of its Subsidiaries has incurred whether asserted or unasserted, contingent or otherwise, other than any liability for unpaid Taxes that may have accrued since the date end of the Saturn Balance Sheet other than most recent fiscal year in connection with the operation of the business of the Company in the ordinary course of business.
(vi) Neither Saturn 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could 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.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Quartet Merger Corp.), Agreement and Plan of Reorganization (Pangaea Logistics Solutions Ltd.)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have prepared and subsidiaries has timely filed all material required Tax Returns United States, Israeli, federal, state, local and foreign returns, estimates, declarations, information statements and reports ("RETURNS") relating to Taxes required to be filed by Company and each of its subsidiaries with any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operationsTax authority, and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable law. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) Saturn The Company and each of its Subsidiaries have timely subsidiaries (A) has paid or accrued all material Taxes it is required to pay or accrue and (B) has withheld from each payment made to its past or present employees, officers, directors and independent contractors, creditors, stockholders or other third parties all Taxes and other deductions required to be paid. With respect to their employeeswithheld and has, Saturn within the time and each of its Subsidiaries have timely in the manner required by law, paid or such withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authorityproper governmental authorities.
(iii) Neither Saturn the Company nor any of its Subsidiaries subsidiaries has been delinquent in the payment of any material Tax, nor Tax or is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn the Company, nor has the Company or any of its Subsidiaries, nor has Saturn or any of its Subsidiaries subsidiaries executed any waiver of any statute of limitations on or extending extensions of the period for the assessment or collection of any material Tax.
(iv) No To Company's or any of its subsidiaries' knowledge, no audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries subsidiaries is presently currently in progress, nor has Saturn the Company or any of its Subsidiaries subsidiaries been notified in writing of any request for such an audit or other examination, nor is any taxing authority asserting, or to Company's or any of its subsidiaries' knowledge, threatening to assert against the Company or any of its subsidiaries any claim for Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company or any of its subsidiaries.
(v) No adjustment relating to any Tax Return Returns filed by Saturn the Company or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally subsidiaries (and no claim by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an a taxing authority in a jurisdiction where Saturn or its Subsidiaries do in which the Company does not file Tax Returns that Saturn the Company or any of its Subsidiaries are or subsidiaries may be subject to taxation by that such jurisdiction.
(v) Neither Saturn nor has been proposed in writing by any Tax authority to the Company or any of its Subsidiaries has subsidiaries or any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businessrepresentative thereof.
(vi) Neither Saturn the Company nor any of its Subsidiaries subsidiaries has any liability for any unpaid Taxes (awhether or not shown to be due on any Return) which has not been accrued for or reserved on the Company balance sheet dated September 30, 2000 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, other than any liability for unpaid Taxes that may have accrued since September 30, 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) Neither the Company nor any of its subsidiaries (i) 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 Saturn)Return, (bii) has ever been a party to any Tax sharing, indemnification sharing or Tax allocation agreement, nor arrangement or understanding and does Saturn or any of its Subsidiaries not owe any amount under any such agreement and agreement, other than this Agreement, (ciii) any liability is liable for the Taxes of any other person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § United States Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractcontract or otherwise, or otherwise and (div) has ever been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could be treated as a partnership for income Tax purposes.
(viiviii) Neither Saturn Company nor any of its Subsidiaries subsidiaries has constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiiix) Neither Saturn nor any The Company and each of its Subsidiaries has engaged subsidiaries are in full compliance with all terms and conditions of any Tax exemptions, Tax holiday or other Tax reduction agreement or order of a reportable transaction territorial or foreign government.
(x) The Company Disclosure Letter lists each material tax incentive granted to the Company and its subsidiaries under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one laws of the types State of transactions that Israel, the Internal Revenue Service has determined to be a period for which such tax avoidance transaction incentive applies, and identified by notice, regulation, or other form the nature of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)such tax incentive.
Appears in 2 contracts
Samples: Merger Agreement (Polycom Inc), Merger Agreement (Accord Networks LTD)
Tax Returns and Audits. (i) Saturn and each of its Subsidiaries have prepared and timely filed all material required Tax Returns relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Click2learn and each of its Subsidiaries have timely paid filed all material federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to Taxes required to be paidfiled by Click2learn and each of its Subsidiaries with any Tax authority. With respect to their employees, Saturn Click2learn and each of its Subsidiaries have timely paid all Taxes shown to be due on such Returns.
(ii) Click2learn and each of its Subsidiaries as of the Effective Time will have withheld or withheld paid, as the case may be, with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other material Taxes required to be paid withheld or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritypaid.
(iii) Neither Saturn Click2learn nor any of its Subsidiaries has been is delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn Click2learn or any of its Subsidiaries, nor has Saturn Click2learn 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 Return of Saturn Click2learn or any of its Subsidiaries by any Tax authority is presently in progress, nor has Saturn Click2learn or any of its Subsidiaries been notified of any request for such an audit or other examination. .
(v) No adjustment relating to any Tax Return Returns filed by Saturn Click2learn or any of its Subsidiaries has been proposed in writing formally or, to the knowledge of Saturn, or informally by any Tax authority to Saturn, Click2learn or any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vvi) Neither Saturn Click2learn nor any of its Subsidiaries has any liabilities liability for any material unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have has not been accrued for or reserved on the Saturn Click2learn Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Click2learn, other than any liability for unpaid Taxes that may have accrued since December 31, 2002 in connection with the operation of the business of Click2learn and neither Saturn its Subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which Click2learn or any of its Subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Click2learn 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 Click2learn 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) Neither Click2learn nor any of its Subsidiaries has incurred filed any liability for Taxes since the date consent agreement under Section 341(f) of the Saturn Balance Sheet other than 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 ordinary course Code) owned by Click2learn or any of businessits Subsidiaries.
(viix) Click2learn has made available to Docent or its legal counsel or accountants copies of all Tax Returns of Click2learn and any of its Subsidiaries requested by Docent.
(x) There are (and immediately following the Effective Time there will be) no material liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, “Liens”) on the assets of Click2learn 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 that, if adversely determined, would result in any Lien for Taxes on the assets of Click2learn or any of its Subsidiaries.
(xi) Neither Saturn Click2learn nor any of its Subsidiaries is or has been at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xii) Neither Click2learn nor any of its Subsidiaries has within the past five years (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 SaturnClick2learn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn Click2learn or any of its Subsidiaries owe any amount under any such agreement and agreement, (c) any liability for the Taxes of any person (other than Saturn Click2learn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixiii) Neither Saturn Click2learn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viiixiv) Neither Saturn Click2learn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xv) None of Click2learn’s or its Subsidiaries’ assets are tax exempt use property within the meaning of Section 168(h) of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Click2learn Inc/De/), Agreement and Plan of Reorganization (Docent Inc)
Tax Returns and Audits. Except as set forth in Schedule 4.8:
(i) Saturn and each of its Subsidiaries have prepared and timely filed all material required All Tax Returns relating required to be filed by or on behalf of MAQ or the Merger Subsidiary by the Code or by applicable state, local or foreign Tax laws with any Tax authority prior to the date hereof have been timely filed. All Tax Returns filed by MAQ or the Merger Subsidiary are true, correct and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct complete in all material respects respects. All Taxes due and payable of MAQ (whether or not reflected on any such Returns) have been completed timely paid in accordance with applicable lawfull.
(ii) Saturn and each Neither MAQ nor the Merger Subsidiary has any liability for any unpaid Taxes which have not been accrued for or reserved on MAQ’s balance sheets included in the latest MAQ SEC Report prior to the date hereof (without taking into account any reserve for deferred taxes), whether asserted or unasserted, contingent or otherwise, which is material to MAQ, other than any liability for unpaid Taxes that may accrue on the Closing Date or may have accrued since the end of its Subsidiaries have timely paid all the most recent fiscal year in connection with the operation of the business of MAQ in the Ordinary Course, none of which is material to the business, results of operations or financial condition of MAQ.
(iii) There are no liens for Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees any of the assets or properties of MAQ or the Merger Subsidiary, other than with respect to Taxes not yet due and payable.
(iv) All Taxes that MAQ or the Merger Subsidiary is required by Legal Requirement to withhold or collect have been duly withheld or collected, and have been timely paid over to the appropriate Taxing authorityproper governmental authorities or deposited in accordance with Legal Requirements.
(iiiv) Neither Saturn MAQ nor any of its Subsidiaries the Merger Subsidiary has been delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed against MAQ or proposed against Saturn or any of its Subsidiariesthe Merger Subsidiary, as applicable, nor has Saturn MAQ or the Merger Subsidiary executed, or been requested to execute, 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. Neither MAQ nor the Merger Subsidiary has requested any extension of time within which to file any Tax Return, which return has not yet been filed. No power of attorney with respect to any Taxes has been executed or filed with any Tax authority by or on behalf of MAQ.
(ivvi) No audit or other examination of any Tax Return of Saturn MAQ or the Merger Subsidiary by any of its Subsidiaries Tax authority is presently in progress, nor has Saturn or any of its Subsidiaries MAQ been notified in writing of any request for such an audit or other examination. No adjustment relating .
(vii) Neither MAQ nor the Merger Subsidiary (A) is a party to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally is not bound by any Tax authority sharing agreement, Tax indemnity obligation or similar agreement, arrangement or practice with respect to SaturnTaxes (including, without limitation, any of its Subsidiaries advance pricing agreement, closing agreement or other agreement relating to Taxes with any representative thereof. Neither Saturn nor any of its Subsidiaries Tax authority); (B) is or has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) Neither Saturn 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 Saturn), is MAQ) filing a consolidated federal income tax return; or (bC) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) has any liability for the Taxes of any person (other than Saturn or any arising from the application of its Subsidiaries) under Treas. Reg. § Treasury Regulation 1.1502-6 (or any similar analogous provision of state, local or foreign law), as or a transferee or successor, by contract, contract or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Mergerotherwise.
(viii) Neither Saturn MAQ nor any of its Subsidiaries has engaged the Merger Subsidiary will be required to include in a reportable transaction under Treas. Reg. § 1.6011-4(b) or taxable period ending after the Closing Date any taxable income attributable to income that accrued, but was not recognized, in a transaction that is the same Pre-Closing Tax Period, as or substantially similar to one a result of an adjustment under Section 481 of the types Code, the installment method of accounting, the long-term contract method of accounting, the cash method of accounting, any comparable provision of state, local, or foreign Tax law, or for any other reason.
(ix) MAQ has made available for inspection to the Company and CMA complete and correct copies of all material Tax Returns of MAQ and Merger Subsidiary for all taxable periods for which the applicable statute of limitations has not yet expired.
(x) Schedule 4.8(x) sets forth (i) each jurisdiction in which MAQ joins, has joined or is or has been required to join for any taxable period ending after 2007 in the filing of any consolidated, combined or unitary Tax Return, and (ii) the common parent corporation and the other individual members of the consolidated, combined or unitary group filing such Tax Return.
(xi) Schedule 4.8(xi) sets forth each state, county, local, municipal or foreign jurisdiction in which MAQ files, or is or has been required to file, a Tax Return relating to state and local income, franchise, license, excise, net worth, property or sales and use taxes or is or has been liable for any Taxes on a “nexus” basis at any time for a taxable period for which the relevant statutes of limitation have not expired.
(xii) The Migratory Merger, the GSL Merger, and the transactions that contemplated by the Internal Revenue Service has determined Asset Purchase Agreement are intended to be part of a tax avoidance transaction plan or series of related transactions.
(xiii) The terms of the Merger Agreement and identified by notice, regulation, or other form the Asset Purchase Agreement were determined through arms’ length negotiations between the managements of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)MAQ and CMA.
Appears in 1 contract
Tax Returns and Audits. (ia) Saturn and each of its Subsidiaries have Seller has prepared and timely filed all material required Tax Returns returns, estimates, information statements and reports ("RETURNS") relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries the Business or their respective operations, the Acquired Assets which it is required to file and such Tax Returns, as of the time of filing Returns were true and correct accurate in all material respects and have been were completed in accordance with applicable lawlaw when filed.
(iib) Saturn and each To the extent a failure to do so would adversely impact Buyer, the Acquired Assets, Buyer's use of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employeesthe Acquired Assets, Saturn and each of its Subsidiaries have timely or the Business, Seller has paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes it is required to be paid pay or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritywithhold.
(iiic) Neither Saturn nor any To the extent a failure to do so would adversely impact Buyer, the Acquired Assets, Buyer's use of its Subsidiaries the Acquired Assets, or the Business, Seller has not been delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn or any of its Subsidiaries, nor has Saturn 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 material TaxSeller.
(ivd) No To the extent relevant to the Acquired Assets, the Business or Buyer's use of the Acquired Assets, no audit or other examination of any Tax Return of Saturn or any of its Subsidiaries Seller is presently in progress, nor has Saturn or any of its Subsidiaries Seller been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(ve) Neither Saturn nor any of its Subsidiaries has Except as specifically provided for herein, Seller does not have any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties related to the Acquired Assets or interest thereon, that are immaterial to Saturn), the Business for which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date Buyer would become liable as a result of the Saturn Balance Sheet other than in the ordinary course of businesstransaction contemplated herein.
(vif) Neither Saturn nor There are (and as of immediately following the Closing there will be) no Liens on the Acquired Assets of Seller relating to or attributable to Taxes. Seller has no knowledge of 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability Basis for the Taxes assertion of any person (claims which, if adversely determined, would result in a Lien or other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, encumbrance on the Acquired Assets or otherwise and (d) ever been a party to any joint venture, partnership adversely effect Buyer or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesAcquired Assets.
(viig) Neither Saturn nor Seller shall be responsible for and pay all Taxes of Seller, its Affiliates, and the Acquired Assets arising at any of its Subsidiaries has constituted either a “distributing corporation” time with respect to periods ending on 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 years prior to the date Signing Date, including the portion of this Agreement or (y) in a distribution that otherwise could 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.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by noticereal, regulation, personal or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)property taxes attributable to such periods.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
Tax Returns and Audits. (i1) Saturn and each of its Subsidiaries have NetWorth has accurately prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning relating or attributable to Saturn, NetWorth or its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were .
(2) The Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw in all material respects.
(ii3) Saturn and each of its Subsidiaries have NetWorth has timely paid all material Taxes required to be paid. With paid with respect to their employees, Saturn such Returns and each of has withheld with respect to its Subsidiaries have timely paid or withheld employees all federal and state income taxesTaxes, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other material Taxes it is required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritywithhold.
(iii4) Neither Saturn nor The accruals for Taxes on the books and records of NetWorth are sufficient to discharge the Taxes for all periods (or the portion of any of its Subsidiaries period) ending on or prior to the Closing Date.
(5) NetWorth has not been delinquent in the payment of any material Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against Saturn or any of its SubsidiariesNetWorth, nor has Saturn or any of its Subsidiaries NetWorth executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iva) No audit or other examination of any Tax Return of Saturn or any of its Subsidiaries NetWorth is presently in progress, nor has Saturn or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vb) Neither Saturn nor any of its Subsidiaries has NetWorth does not have any liabilities for unpaid Taxes (other than federal, state, local and foreign Taxes, whether asserted or unasserted, known or unknown, contingent or otherwise and NetWorth has no Knowledge of any basis for the assertion of any such liabilitiesliability attributable to NetWorth, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued their respective assets or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businessoperations.
(vic) Neither Saturn NetWorth is not (nor has it ever been) required to join with any other entity in the filing of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated Tax return for federal income Tax Return (other than purposes or a group the common parent of which was Saturn), (b) ever been a party to any Tax sharing, indemnification consolidated or allocation agreement, nor does Saturn combined return or any of its Subsidiaries owe any amount under any such agreement and (c) any liability report for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for state Tax purposes.
(vii7) Neither Saturn nor NetWorth is not a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement.
(8) NetWorth has provided, or made available, to Colmena or its legal counsel copies of all federal, state and local income and all sales and use Tax Returns of NetWorth for all periods since its Subsidiaries date of incorporation.
(9) There are (and as of immediately following the Closing Date there will be) no liens on the assets of NetWorth relating to or attributable to Taxes.
(10) NetWorth has constituted either a “distributing corporation” no Knowledge of any basis for the assertion of any Tax claim which, if adversely determined, would result in liens on the assets of NetWorth.
(11) NetWorth has no property which is being sold, conveyed or a “controlled corporation” transferred pursuant to this Agreement which in a distribution the hands of stock intended Colmena would be treated as being owned by persons other than Colmena pursuant to qualify for tax-free treatment under Section 355 168(f)(8) of the Internal Revenue Code (x) of 1954 as in the two years effect immediately prior to the date enactment of this Agreement the Tax Reform Act of 1986, or any analogous provisions of any state law.
(y12) in a distribution that otherwise could constitute part None of a “plan” or “series the assets of related transactions” NetWorth are treated as "Tax-exempt use property" within the meaning of Section 355(e168(h) of the Code in conjunction with the MergerCode.
(viii13) Neither Saturn nor 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 its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) NetWorth that, individually or in a transaction collectively, could give rise to the payment of any amount that is the same as would not be deductible pursuant to Sections 280G, 162 or substantially similar to one 404 of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)Code.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn VGX and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports (“Tax Returns Returns”) relating to any and all Taxes concerning or attributable to Saturn, VGX or its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true Returns are accurate and correct complete in all material respects and respects. VGX and/or its Subsidiaries have been completed in accordance with applicable lawpaid or accrued all Taxes shown on such Tax Returns.
(ii) Saturn VGX and each of its Subsidiaries have timely paid all material Taxes required to be paid. With paid and withheld with respect to their employees, Saturn employees (and each of its Subsidiaries have timely paid or withheld over to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor There is there any material no Tax deficiency outstanding, assessed or proposed against Saturn VGX or any of its Subsidiaries, and neither VGX nor any Subsidiary is a party to any action or proceeding for the assessment or collection of Taxes, nor has Saturn VGX or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax Return of Saturn VGX or any of its Subsidiaries is presently in progress, nor has Saturn VGX or any of its Subsidiaries been notified of (in writing) that any request for Taxing authority is threatening or planning to initiate such an audit or other examination. No adjustment relating to any Tax Return filed written claim has ever been asserted by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority a Governmental Entity in a jurisdiction where Saturn VGX or its Subsidiaries do any Subsidiary does not file Tax Returns that Saturn or any of its Subsidiaries are such entity is or may be subject to taxation by that jurisdiction.
(v) Neither Saturn As of the date of the VGX Balance Sheet, neither VGX nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn)Taxes, which have not been accrued or reserved on the Saturn VGX Balance Sheet in accordance with US GAAP, and since the date of the VGX Balance Sheet, neither Saturn VGX nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) There are no Liens (except for Permitted Liens) on the assets of VGX or any of its Subsidiaries relating to or attributable to Taxes.
(vii) Neither Saturn VGX 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.
(aviii) Neither VGX nor any of its Subsidiaries (A) has ever been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was SaturnVGX), (bB) ever been owes any amount under, or is a party to to, any Tax sharing, indemnification or allocation agreement, nor does Saturn agreement (other then between or among VGX and any of its Subsidiaries owe any amount under any such agreement and Subsidiaries), (cC) has any liability for the Taxes of any person (other than Saturn VGX or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesotherwise.
(viiix) Neither Saturn VGX nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution that which could otherwise could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiix) VGX has made available to Inovio true and complete copies of (i) income and sales tax audit reports, statements of deficiencies, and closing or other agreements relating to VGX’s or any Subsidiary’s Taxes, and (ii) all federal, state and local income or franchise tax returns for VGX and all its Subsidiaries for all periods ending on or before the date of this Agreement.
(xi) There are no Tax-sharing agreements or similar arrangements (including Tax indemnity arrangements) with respect to or involving VGX or any Subsidiaries other than this Agreement.
(xii) Neither Saturn VGX nor any Subsidiary has participated in (i) any “tax shelter” within the meaning of its Subsidiaries has engaged Section 6111 (as in effect prior to the enactment of P.L. 108-357 or any comparable laws of jurisdictions other than the United States), or (ii) a reportable transaction as described in U.S. treasury regulations promulgated under Treas. Reg. § 1.6011-4(bSection 6011 of the Code or any comparable laws of jurisdictions other than the United States.
(xiii) Based on good faith interpretations of Code Section 409A and IRS guidance thereunder, to VGX’s Knowledge, neither VGX nor any Subsidiary has, since October 3, 2004, (i) granted to any person an interest in a nonqualified deferred compensation plan (as defined in Code Section 409A(d)(1)) which interest has been or, upon the lapse of a substantial risk of forfeiture with respect to such interest, will be subject to the Tax imposed by Code Sections 409A(a)(1)(B) or (b)(4)(A), or (ii) modified the terms of any nonqualified deferred compensation plan in a transaction manner that is could cause an interest previously granted under such plan to become subject to the same as Tax imposed by Code Sections 409A(a)(1)(B) or substantially similar (b)(4).
(xiv) Neither VGX nor any Subsidiary will be required to one include any material item of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulationincome in, or other form exclude any material item of published guidance deduction from, its taxable income for any taxable period (or portion thereof) ending after the Closing Date as a listed transactionresult of any: (i) adjustment under Code Section 481 with respect to a change in method of accounting for a taxable period ending on prior to the Closing Date, (ii) “closing agreement” as set forth described in Treas. Reg. § 1.6011-4(b)(2Code Section 7121 (or any corresponding state, local or foreign Legal Requirement), (iii) intercompany transactions or any excess loss account described in the United States Treasury Regulations under Code Section 1502 (or any corresponding state, local or foreign Legal Requirements that, in either case, is attributable to transactions or other events occurring prior to the Closing Date), (iv) installment sale or open transaction disposition made on or prior to the Closing Date or (v) prepaid amount received on or prior to the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Inovio Biomedical Corp)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, declarations, claims for refund, information statements and reports (“Tax Returns Returns”) relating to any and all Taxes concerning or attributable to Saturnthe Company, its Subsidiaries or their respective operations, operations and such Tax ReturnsReturns are true, as of the time of filing were true correct and correct complete in all material respects and have been prepared and completed in accordance with applicable lawLegal Requirements.
(ii) Saturn The Company and each of its Subsidiaries have fully and timely paid all material Taxes required to be paidpaid whether or not shown on any Tax Return. With respect No claim has ever been made by any Taxing authority in a jurisdiction where the Company or any of its Subsidiaries have not filed Tax Returns that the Company or any of its Subsidiaries are or may be subject to their employees, Saturn Tax by that jurisdiction and neither the Company nor any of its Subsidiaries has any permanent establishment or taxable presence in any jurisdiction outside its territory of incorporation.
(iii) The Company and each of its Subsidiaries have fully and timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely Employees (and paid over to the appropriate Taxing authority) all Taxes required to be paid or withheld and have maintained in all material respects complete, correct and up-to-date records.
(iiiiv) Neither Saturn the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn or any of its Subsidiaries, nor has Saturn or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax.
(ivv) No audit audit, enquiry or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified in writing of any request for such an audit audit, enquiry or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vvi) Neither Saturn the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Company Balance Sheet in accordance with GAAP, and neither Saturn the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Company Balance Sheet other than in the ordinary course of business.
(vivii) There are no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes other than Permitted Liens.
(viii) Neither Saturn the Company nor any of its Subsidiaries has is a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) Neither the Company nor any of its Subsidiaries (a) has ever been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturnthe Company) or a fiscal consolidation or fiscal unity for the purposes of any Tax (including, for the avoidance of doubt, for any value added tax purposes), (b) ever been a party to owes any amount under any Tax sharing, indemnification or allocation agreementagreement or group payment arrangement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) has any liability for the Taxes of any person Person (other than Saturn Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesotherwise.
(viix) Neither Saturn the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(xi) No closing agreement pursuant to Section 7121 of the Code (xor any predecessor provision) or any similar provision of any state, local or foreign Law has been entered into by or on behalf of the Company or any of its Subsidiaries which would have binding effect on the Company or any of its Subsidiaries for any taxable year ending after the Closing Date.
(xii) Neither the Company nor any of its Subsidiaries (a) has made a change in method of accounting, (b) has agreed or is required to make a change in method of accounting in its Tax Returns that would require either the two years prior Company or any of its Subsidiaries to the date make any adjustment to their respective computation of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of income pursuant to Section 355(e481(a) of the Code (or any predecessor provision), or (c) has an application pending with any Taxing authority requesting permission for any such change in conjunction with any accounting method of the MergerCompany and no Governmental Entity has proposed in writing any such adjustment or change in accounting method.
(viiixiii) There is no contract, agreement, plan or arrangement covering any Person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company or any of its Subsidiaries by reason of Section 280G of the Code or similar provision of state, local or foreign law.
(xiv) Neither Saturn the Company nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in entered into a transaction that is being accounted for under the same as or substantially similar to one installment method of Section 453 of the types Code or similar provision of transactions state, local or foreign law.
(xv) All capital expenditure incurred by the Company or any of its Subsidiaries on or before the date of the Company Balance Sheet and in respect of which claims for capital allowance or tax depreciation have or will be made has qualified and will continue to qualify as qualifying expenditure for such purposes and all capital expenditure incurred since the date of the Company Balance Sheet or to be incurred under a contract made before the Closing Date by the Company or any of its Subsidiaries is qualifying expenditure for these purposes.
(xvi) Neither the Company nor any of its Subsidiaries has within the past six years entered into or been involved in any transaction, series of transactions, scheme or arrangement which, or any part of which, may, by reason of the fact that a Tax advantage was sought or obtained, for any Tax purpose be disregarded, reconstructed or otherwise treated as being different from the transaction, series of transactions, scheme or arrangement as contemplated or intended by the Company or any of its Subsidiaries.
(xvii) No Tax authority has within the past six years investigated any transaction, series of transactions, scheme or arrangement involving the Company or any of its Subsidiaries with a view to applying any transfer pricing or equivalent legislation or legal principles in any other jurisdiction, and no circumstances exist which could result in any liability or increased liability of the Company or any of its Subsidiaries to Tax if such investigation were undertaken.
(xviii) Neither the Company nor any of its Subsidiaries will become liable to pay or make reimbursement or indemnity in respect of any Tax in consequence of the failure by any other person to discharge that Tax within any specified period or otherwise, where such Tax relates to events or circumstances arising or deemed to arise prior to Closing.
(xix) No circumstances exist such that a power of sale could be exercised in relation to any shares, securities, or other asset of the Company or any of its Subsidiaries pursuant to Section 212 IHTA 1984.
(xx) Neither the Company nor any of its Subsidiaries has (A) consummated or participated in, and is not currently participating in, any transaction which was or is a “Tax shelter” transaction as defined in Sections 6662, 6011, 6111 or 6112 of the Code, applicable United States Treasury Regulations or other published guidance from the Internal Revenue Service or (B) engaged in any transaction that could give rise to (1) a registration obligation with respect to any Person under Section 6111 of the Code or the regulations thereunder, (2) a list maintenance obligation with respect to any Person under Section 6112 of the Code or the regulations thereunder, or (3) a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and the regulations thereunder.
(xxi) Neither the signing of this Agreement nor Closing will result in any profit or gain being deemed to accrue to the Company or any of its Subsidiaries for the purposes of Tax.
(xxii) No transfers of capital assets (other than trading stock and work in progress) has determined occurred at any time to or from the Company or any of its Subsidiaries to any company within the same group.
(xxiii) The Company and its Subsidiaries are registered and taxable persons for the purposes of any value added taxes and neither the Company nor any of its Subsidiaries has ever been treated for such purposes as a member of a group, and has maintained and obtained full, complete, correct and up-to-date records, invoices and other records (as the case may be) appropriate or requisite for the purposes thereof.
(xxiv) Neither the Company nor any of its Subsidiaries holds an interest in any buildings or land in respect of which the Company, its Subsidiaries or any other person has made an election to waive the exemption to value added tax.
(xxv) The Company and each of its Subsidiaries is entitled to obtain full credit for all sums which they have purported to have incurred by way of input Tax and there are no circumstances by reason of which the Company or any of its Subsidiaries may cease to be a tax avoidance transaction so entitled and identified neither the Company nor any of the Subsidiaries hold assets to which the capital goods scheme would apply.
(xxvi) The Company and each of its Subsidiaries has duly paid all stamp duty, stamp duty land Tax and all stamp duty reserve Tax for which they are or have at any time been liable and neither the Company nor any of its Subsidiaries is liable to pay any penalty, interest or fine in respect of stamp duty, stamp duty land Tax or stamp duty reserve Tax.
(xxvii) Any document that may be necessary or desirable in proving title of the Company or any of its Subsidiaries to any asset which is owned by noticethe Company or any of its Subsidiaries at Closing, regulationand each document which the Company or any of its Subsidiaries may wish to enforce or produce in evidence, or other form of published guidance as a listed transaction, as set forth in Treasis duly stamped for stamp duty purposes. Reg. § 1.6011-4(b)(2)No such documents which are outside the United Kingdom would attract stamp duty if they were brought into the United Kingdom.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn NIMS and each of its Subsidiaries have prepared and timely filed all material required Tax Returns required to be filed relating to any and all Taxes concerning or attributable to SaturnNIMS, its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were true and correct in all material respects and Returns have been completed in accordance with applicable lawLegal Requirements in all material respects.
(ii) Saturn NIMS and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees Employees and have been timely paid over to the appropriate Taxing authorityauthority all such Taxes.
(iii) Neither Saturn NIMS nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn or any of its Subsidiaries, nor has Saturn or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax Return of Saturn NIMS or any of its Subsidiaries is presently in progress, nor has Saturn NIMS or any of its Subsidiaries been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn NIMS nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn NIMS Balance Sheet in accordance with GAAP, and neither Saturn NIMS nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn NIMS Balance Sheet other than in the ordinary course of business.
(vi) There are no Liens on the assets of NIMS or any of its Subsidiaries relating to or attributable to Taxes other than Permitted Liens.
(vii) Neither Saturn NIMS nor any of its Subsidiaries has (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 SaturnNIMS), (b) ever been a party to owes any amount under any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) has any liability for the Taxes of any person Person (other than Saturn NIMS or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign lawLegal Requirements), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesotherwise.
(viiviii) Neither Saturn NIMS nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code Code.
(xix) in There is no agreement, plan, arrangement or other Contract covering any current or former employee or other service provider of NIMS or any of its Subsidiaries to which NIMS or any of its Subsidiaries is a party or by which NIMS or any of its Subsidiaries is bound that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could be expected to, as a result of the two years prior transactions contemplated hereby, give rise directly or indirectly to the date payment of this Agreement or (y) in a distribution any amount that otherwise could constitute part of a would be characterized as an “plan” or “series of related transactionsparachute payment” within the meaning of Section 355(e280G of the Code (or any corresponding or similar provision of state, local or foreign tax law). No employee, director, consultant or other service provider of NIMS or any of its Subsidiaries is entitled to receive any additional gross up payment from NIMS or any of its Subsidiaries by reason of any taxes imposed by Section 4999 of the Code.
(x) There is no Contract of NIMS or any of its Subsidiaries covering any of their Employees that, considered individually or considered collectively with any other such Contract of NIMS or any of its Subsidiaries, will, or would reasonably be expected to, as a result of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events), give rise directly or indirectly to the payment of any amount that could reasonably be expected to be non-deductible under Section 162(m) of the Code in conjunction with the Merger.
(viii) Neither Saturn nor or any corresponding or similar provision of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) state, local or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2foreign Tax Legal Requirements).
Appears in 1 contract
Samples: Equity Exchange Agreement (Non Invasive Monitoring Systems Inc /Fl/)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have (a) prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, of the Company (including the Company’s Subsidiaries) and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been or will be completed in accordance with applicable lawlaw and (b) timely paid in full all Taxes it is required to pay.
(ii) Saturn The Company and each of its Subsidiaries have timely withheld or paid all material Taxes required to be paid. With the appropriate authorities, with respect to their employeesits Employees and other third parties, Saturn all federal, state and each of its Subsidiaries have timely paid or withheld all federal foreign income taxes and state income taxessocial security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid so withheld or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritypaid.
(iii) Neither Saturn the Company nor any of its Subsidiaries has have been or is now delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn the Company or any of its Subsidiaries, nor has Saturn 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 material Tax.
(iv) No audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently currently in progress, nor has Saturn the Company or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, whether or not shown on any return, contingent or otherwise, and neither Saturn the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet Date other than in the ordinary course of business.
(vi) Neither Saturn nor The Company has provided to Parent or its legal counsel copies of all Returns for the Company and its Subsidiaries filed for all periods since its inception and all examination reports and statements of deficiencies assessed against or agreed to by the Company or any of its Subsidiaries.
(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. The Company has no Knowledge of any basis for the assertion of any claim relating or attributable to Taxes, which, if adversely determined, would result in any Lien on the assets of the Company or any of its Subsidiaries.
(viii) None of the assets of the Company of any of its Subsidiaries is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) The Company has never 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)(2) of the Code) owned by the Company or any of its Subsidiaries.
(x) The Company has (a) ever 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 an affiliated group consisting of the common parent of which was Saturn)Company and its Subsidiaries, (b) ever never been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any no liability for the Taxes of any person Person (other than Saturn Company or any of its Subsidiaries) ), under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractcontract or agreement, or otherwise and (d) ever never been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixi) 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.
(xii) The Company has never been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xiii) No adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any representative thereof.
(xiv) Neither Saturn nor any of the Company not its 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 (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiixv) Neither Saturn the Company nor any of its Subsidiaries has ever engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xvi) Neither the Company nor or any of its Subsidiaries have ever received written notice of a claim made by a Tax authority in a jurisdiction where it does not file Returns that it is or may be subject to taxation by that jurisdiction.
(xvii) Each of the Company and each of its Subsidiaries has in its possession official foreign government receipts for any Taxes paid by it to any foreign Tax authorities.
(xviii) The Company for itself and for its Subsidiaries has made available to the Parent all documentation relating to any Tax holidays or incentives with respect to which the Company or any of its Subsidiaries claims any entitlement. The Company and its Subsidiaries are in compliance with the requirements for any applicable Tax holidays or incentives.
(xix) The Company and its Subsidiaries have complied in all respects with the provision of the Code relating to the withholding of Taxes (including maintenance of records), as well as similar provisions under any other laws, and has, within the time and in the manner prescribed by law, withheld and paid over to the proper Tax authority all such amounts paid.
Appears in 1 contract
Samples: Merger Agreement (Altiris Inc)
Tax Returns and Audits. (i) Saturn 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 of its Subsidiaries Seller Affiliate will have prepared and timely filed all material required Tax Returns federal, state, provincial, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to SaturnSeller, its Subsidiaries Seller Affiliates or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law.
(ii) Saturn 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 of its Subsidiaries Seller Affiliate will have timely paid all material Taxes it is required to be paid. With respect to their employees, Saturn pay and each of its Subsidiaries will have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been Business Employees and other Persons (and timely paid over to the appropriate Taxing authority) all Taxes and other Taxes required to be withheld.
(iii) Neither Saturn 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 of its Subsidiaries Seller Affiliate has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn Seller or any of its SubsidiariesSeller Affiliate, nor has Saturn Seller or any of its Subsidiaries Seller Affiliate 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 Saturn Seller or any of its Subsidiaries Parent that is or would be relevant to the Business or the Acquired Assets is presently in progress, nor has Saturn Seller or any of its Subsidiaries Parent been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid There are (and immediately following the Closing there will be) no Liens on the Acquired Assets relating to or attributable to Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability customary Liens for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businessnot yet due and payable.
(vi) Neither Saturn nor Seller has no knowledge of 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability basis for the Taxes assertion of any person (other than Saturn claim relating or attributable to Taxes which, if adversely determined, would result in any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to Lien on the knowledge of Saturn could be treated as a partnership for Tax purposesAcquired Assets.
(vii) Neither Saturn nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of To the Code (x) in the two years prior extent relevant to the date of this Agreement Business or (y) the Acquired Assets, no adjustment relating to any Return filed by Seller or any Seller Affiliate has been proposed in a distribution that otherwise could constitute part of a “plan” writing by any tax authority to Seller or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Mergerany Seller Affiliate or any representative thereof.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 1 contract
Samples: Asset Purchase Agreement (Baltimore Technologies PLC)
Tax Returns and Audits. (i) Saturn Novadigm and each of its Subsidiaries have prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports and any amendments thereto ("TAX RETURNS") relating to any and all Taxes concerning or attributable to SaturnNovadigm, its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Novadigm and each of its Subsidiaries have timely paid to the appropriate Taxing authority all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and any other material Taxes amounts required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor There is there any material no Tax deficiency outstanding, assessed or or, to the knowledge of Novadigm, proposed against Saturn Novadigm or any of its Subsidiaries, nor has Saturn Novadigm 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 material TaxTax that is still in effect.
(iv) No audit or other examination of any Tax Return of Saturn Novadigm or any of its Subsidiaries is presently in progress, nor has Saturn Novadigm or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Novadigm nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, for the taxable periods reflected on the Novadigm Balance Sheet that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Novadigm Balance Sheet in accordance with GAAP, and neither Saturn Novadigm nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Novadigm Balance Sheet other than in the ordinary course of business.
(vi) Novadigm has made available to Parent or its legal counsel copies of all Tax Returns for Novadigm and each of its Subsidiaries filed for all open years that have been requested by Parent or its legal counsel.
(vii) There are no Liens on the assets of Novadigm 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 Novadigm or any of its Subsidiaries.
(viii) None of the assets of Novadigm or any of its Subsidiaries is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(ix) Neither Saturn Novadigm nor any of its Subsidiaries has been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code during the period specified in Section 897(c)(1)(A)(ii) of the Code.
(x) No adjustment relating to any Tax Return filed by Novadigm or any of its Subsidiaries has been proposed formally or, to the knowledge of Novadigm or any of its Subsidiaries, informally by any tax authority to Novadigm, any of its Subsidiaries or any representative thereof.
(xi) Neither Novadigm nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(aSection 1504 (a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was SaturnNovadigm), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn Novadigm or any of its Subsidiaries owe any amount under any such agreement and agreement, (c) any liability for the Taxes of any person Person (other than Saturn Novadigm or any of its Subsidiaries) under Treas. Reg. § Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixii) Neither Saturn Novadigm nor any of its Subsidiaries has constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiixiii) Neither Saturn Novadigm nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § .Section 1.6011-4(b)(2).
(xiv) Novadigm and each of 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 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 exemption, Tax holiday or other or other Tax reduction agreement or order.
(xv) Neither Novadigm nor any of its Subsidiaries are or at any time have been treated as resident in any jurisdiction other than their jurisdiction of incorporation for any Tax purpose (including any double taxation arrangement). Novadigm and each of its Subsidiaries are not subject to Tax in any jurisdiction other than its place 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 jurisdiction, except for income for which any income tax is satisfied through withholding or otherwise paid.
Appears in 1 contract
Samples: Merger Agreement (Novadigm Inc)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have prepared and timely filed or will file all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports and all other filings ("Returns") relating to Taxes required to be filed by the Company or any and all Taxes concerning or attributable to Saturn, of its Subsidiaries with any Tax authority, including any combined, consolidated or their respective operations, and such Tax Returns, as unitary returns of which the time of filing were Company or any Subsidiary is a member. Such Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Legal Requirements and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn the Company and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Governmental Entity all Taxes due on such Returns. Neither Saturn the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed in writing against Saturn the Company or any of its Subsidiaries, nor has Saturn 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 material Tax.
(iv) . No audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to Neither the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, and neither Saturn the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Company Balance Sheet other than in the ordinary course of business.
(vi) . Neither Saturn 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 SaturnCompany or HoldCo), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn Company or any of its Subsidiaries) ), under Treas. Reg. § Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign lawlaw including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contractcontract or agreement, or otherwise and (d) to the Company's Knowledge, ever been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) . No adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed orally or in writing by any Tax authority to the Company or any of its Subsidiaries or any representative thereof. Neither Saturn the Company nor any of its Subsidiaries has constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) Code. None of the Code in conjunction with the Merger.
(viii) Neither Saturn nor Company or any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2). The Company is not a U.S. Real Property Holding Company.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn Each of the Company and each of its Subsidiaries have has (A) prepared and timely filed all required material required Tax Returns domestic and foreign returns, estimates, information statements and reports ("RETURNS") relating to any and all Taxes concerning or attributable to Saturn, the Company or any of its Subsidiaries or their respective operations, and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw and (B) timely paid all Taxes required to be paid.
(ii) Saturn Each of the Company and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely has paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act with respect to its Employees and other material third parties, all domestic and foreign income taxes and social security charges and similar fees, and other Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been has timely paid such Taxes withheld over to the appropriate Taxing authorityauthorities (including for all purposes under this Agreement, the Investment Center with respect to the status of ART, Ltd. as an "Approved Enterprise" under Israel's Law for the Encouragement of Capital Investment, 1959).
(iii) Neither Saturn the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn the Company or any of its Subsidiaries, nor has Saturn 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 material Tax.
(iv) No audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn the Company or any of its Subsidiaries has been proposed formally in writing or, to the knowledge Knowledge of Saturnthe Company or any of its Subsidiaries, informally by any Tax authority to Saturn, any of its Subsidiaries the Company or any representative thereof. Neither Saturn .
(v) As of the Balance Sheet Date, neither the Company nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has had any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, and neither Saturn the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet Date other than in the regular and ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all material Returns for the Company and its Subsidiaries filed for all periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating or attributable to Taxes, other than Liens for Taxes not yet due and payable. Neither Saturn the Company nor any of its Subsidiaries has Knowledge of any reasonable basis for the assertion of any claim relating or attributable to Taxes, which, if adversely determined, would result in any Lien on the assets of the Company or any of its Subsidiaries.
(viii) Neither the Company nor any of its Subsidiaries has (aA) ever been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Saturnthe Company), (bB) ever been a party to any Tax sharing, indemnification indemnification, allocation or allocation similar agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (cC) any liability for the Taxes of any person (other than Saturn the Company or any of its Subsidiaries) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, local domestic or foreign lawlaw or any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contractcontract or agreement, or otherwise and (dD) ever been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could is or should be treated as a partnership for Tax purposes.
(viiix) Neither Saturn the Company nor any of its Subsidiaries has been, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) Neither the Company nor any of its Subsidiaries has constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viiixi) Neither Saturn the Company nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § Section 1.6011-4(b)(2).
(xii) ART, Ltd. qualifies as an Industrial Company according to the meaning of that term in the Law for the Encouragement of Industry (Taxes), 1969 and, after any applicable Tax holiday, Section 47(A1) of the Law Encouragement of Capital Investment, 1959 applies to the ART, Ltd., considering its level of foreign investment. As of the date hereof, Ninety Percent (90%) or more of ART, Ltd.'s shares are owned by non-Israeli residents. The consummation of the Merger will not have any adverse effect on such qualification as an Industrial Company.
(xiii) Each of the Company and its Subsidiaries is in compliance in all material respects with all terms and conditions of any Tax exemptions, Tax holiday or other Tax reduction agreement, approval or order of any government and, subject to receipt of the Investment Center Approval and the other Approvals required herein, the consummation of the Merger will not have any adverse effect on the validity and effectiveness of any such Tax exemptions, Tax holiday or other Tax reduction agreement or order.
(xiv) The Disclosure Schedule lists each material tax incentive granted to or enjoyed by the Company or its Subsidiaries under the laws of the State of Israel, the period for which such tax incentive applies, and the nature of such tax incentive. The Company and its Subsidiaries have complied with all material requirements of Israeli law to be entitled to claim all such incentives. Subject to receipt of the Investment Center Approval, consummation of the Merger will not adversely affect the continued qualification for the incentives or the terms or duration thereof or require any recapture of any previously claimed incentive, and no consent or approval of any Governmental Entity is required, other than as set forth on SECTION 2.10(b)(xiv) of the Disclosure Schedule, prior to the consummation of the Merger in order to preserve the entitlement of the Surviving Corporation or its Subsidiaries to any such incentive.
(xv) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from Taxable income as a result of (A) any change in method of accounting under Section 481(c) of the Code, (B) closing agreement under Section 7121 of the Code, (C) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or in the case of each of (A), (B), and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition or (E) prepaid amount.
(xvi) Each of the Company and 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 Tax treaty or other arrangement for the avoidance of double taxation). Neither the Company nor any of its Subsidiaries is subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment or other fixed place of business in that country.
(xvii) The prices for any property or services (or for the use of property) provided by or to the Company and each of its Subsidiaries have been arm's length prices, determined using a method permitted by the Treasury Regulations promulgated under Section 482 of the Code. Any cost sharing arrangement to which the Company or any of its Subsidiaries is a party is a qualified cost sharing arrangement as such terms are defined in Treasury Regulations Section 1.482-7.
(xviii) There has been no indication from any Tax authority that the consummation of the Merger would adversely affect the ability to set off for tax purposes in the future any and all losses accumulated by the Company and its Subsidiaries as of the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Scansoft Inc)
Tax Returns and Audits. (i) Saturn Credence and each of its Subsidiaries have prepared and properly filed on a timely filed basis all material required Tax Returns relating that they were required to any file, and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, and such Tax ReturnsReturns were true, as of the time of filing were true correct and correct complete in all material respects respects. Each of Credence and have been completed its Subsidiaries has paid on a timely basis all material Taxes that were due and payable. The most recent financial statements contained in the Credence SEC Reports reflect an adequate reserve (in accordance with applicable law.
(iiGAAP) Saturn for all material Taxes payable by Credence and its Subsidiaries through the date of such financial statements and all unpaid Taxes of Credence and each of its Subsidiaries have timely paid for all tax periods commencing after the date of such financial statements arose in the ordinary course of business consistent with past practice. No material deficiencies for any Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over asserted or assessed, or to the appropriate Taxing authority.
(iii) Neither Saturn nor any Knowledge of its Subsidiaries has been delinquent in the payment of any material TaxCredence, nor is there any material Tax deficiency outstandingproposed, assessed or proposed against Saturn Credence or any of its Subsidiaries, nor has Saturn Credence 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 material TaxTax which waiver or extension remains in effect.
(ivii) Credence and each of its Subsidiaries have timely paid or withheld with respect to their employees (and paid over any amounts withheld to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes required to be paid or withheld and material to Credence and its Subsidiaries, taken as a whole.
(iii) No audit or other examination of any material Tax Return of Saturn Credence or any of its Subsidiaries is presently in progressprogress as of the date hereof, nor has Saturn Credence or any of its Subsidiaries been notified in writing as of the date hereof of any request for such an audit or other examination. No adjustment relating .
(iv) Credence has made available (for this purpose in the Credence electronic data room or otherwise) to any LTX copies of all material Tax Return filed by Saturn or any Returns for Credence and each of its Subsidiaries has been proposed formally orfiled for all periods beginning January 1, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries 2004 or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdictionlater.
(v) Neither Saturn nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of business.
(vi) Neither Saturn 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 Saturn), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii) Neither Saturn Credence nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution that which otherwise could constitute constitutes part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code in conjunction with Code) that includes the Merger.
(viiivi) Neither Saturn Credence nor any of its Subsidiaries has engaged in a “reportable transaction under Treas. Reg. § transaction,” as set forth in Treasury Regulations section 1.6011-4(b) ), or in 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 avoidance transaction and identified by notice, regulation, regulation or other form of published guidance as a “listed transaction, ,” as set forth in Treas. Reg. § Treasury Regulations section 1.6011-4(b)(2).
(vii) Neither Credence nor any of its Subsidiaries has taken any action or has failed to take any action or has Knowledge of any fact, agreement, plan or other circumstance that would cause the Merger to fail to qualify as a reorganization with the meaning of Section 368(a) of the Code.
(viii) There is no contract, agreement, plan or arrangement to which Credence or any of its Subsidiaries is a party, including the provisions of this Agreement, covering any employee, consultant or director of Credence or any of its Subsidiaries, which, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 404 or 162(m) of the Code.
(ix) Neither Credence nor any of its Subsidiaries (A) has any actual or potential liability under Treasury Regulations section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign law), as a transferee or successor, pursuant to any contractual obligation, or otherwise for any Taxes of any Person other than Credence or any of its Subsidiaries, or (B) is a party to or bound by any Tax indemnity, Tax sharing, Tax allocation or similar agreement.
(x) Neither Credence nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any Contract that could obligate it to make any payments that may be treated as an “excess parachute payment” under Section 280G of the Code, determined without regard to Section 280G(b)(4)(B) of the Code.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn Target and each of its Subsidiaries have (a) prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Saturn, its Subsidiaries or their respective operations, of Target (including Target’s Subsidiaries) and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been or will be completed in accordance with applicable lawlaw and (b) timely paid in full or reserved for unpaid Taxes on Target’s balance sheet as of the Financial Statement Date (the “Current Target Balance Sheet”) included in the Target Financial Statements all material Taxes it is required to pay, whether or not shown to be due on any Returns.
(ii) Saturn Target and each of its Subsidiaries have timely withheld or paid all material Taxes required to be paid. With the appropriate authorities, with respect to their employeesits Employees and other third parties, Saturn all federal, state and each of its Subsidiaries have timely paid or withheld all federal foreign income taxes and state income taxessocial security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid so withheld or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritypaid.
(iii) Neither Saturn Target nor any of its Subsidiaries has have been or is now delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed in writing against Saturn Target or any of its Subsidiaries, nor has Saturn Target 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 material Tax.
(iv) No audit or other examination of any Tax Return of Saturn Target or any of its Subsidiaries is presently currently in progress, nor has Saturn Target or any of its Subsidiaries been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Target nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Current Target Balance Sheet included in accordance with GAAPthe Target Financial Statements, whether asserted or unasserted, whether or not shown on any return, contingent or otherwise, and neither Saturn Target nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet Financial Statement Date other than in the ordinary course of business.
(vi) Neither Saturn nor Target has provided to Parent or its legal counsel copies of all Returns for Target and its Subsidiaries filed for all periods since its inception and all examination reports and statements of deficiencies assessed against or agreed to by Target or any of its Subsidiaries.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of Target or any of its Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. Target 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 Target or any of its Subsidiaries.
(viii) None of the assets of Target of any of its Subsidiaries is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) Target has (a) ever been treated as a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated partnership for all federal income Tax Return (other than a group the common parent of which was Saturn)tax purposes since its inception, (b) ever never been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any no liability for the Taxes of any person Person (other than Saturn Target or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractcontract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to except as specifically provided in the knowledge of Saturn could be treated as a partnership for Tax purposesTarget Operating Agreement.
(viix) Neither Saturn nor No adjustment relating to any Return filed by Target or any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” been proposed formally in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior writing or, to the date knowledge of this Agreement Target, informally by any tax authority to Target or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Mergerany representative thereof.
(viiixi) Neither Saturn Target nor any of its Subsidiaries has ever engaged in a “reportable transaction under Treas. Reg. § transaction,” as set forth in Treasury Regulation Section 1.6011-4(b) ), or in 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 avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xii) Target uses the accrual method of accounting for income Tax purposes.
(xiii) Neither Target nor any of its Subsidiaries is a party to any long-term contract to which Section 460 of the Code applies.
(xiv) Neither Target nor any of its Subsidiaries have ever received written notice of a claim made by a Tax authority in a jurisdiction where it does not file Returns that it is or may be subject to taxation by that jurisdiction.
(xv) Target and its Subsidiaries have complied in all respects with the provision of the Code relating to the withholding of Taxes (including maintenance of records), as well as similar provisions under any other laws, and has, within the time and in the manner prescribed by law, withheld and paid over to the proper Tax authority all such amounts paid.
(xvi) Each Subsidiary of the Target is (A) wholly owned by Target, and (B) has been a disregarded entity since its inception.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have (a) prepared and timely filed all material federal, state, local and foreign returns, estimates, information statements and reports required Tax Returns to be filed (“Returns”) relating to any and all Taxes concerning or attributable to Saturn, the Company or its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are 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 due and payable by the Company and its Subsidiaries.
(ii) Saturn The Company and each of its Subsidiaries have timely withheld or paid all material Taxes required to be paid. With the appropriate authorities or depositories, with respect to their employeesemployees and other third parties, Saturn all federal, state and each of its Subsidiaries have timely paid or withheld all federal foreign income taxes and state income taxessocial security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid so withheld or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritypaid.
(iii) Neither Saturn the Company nor any of its Subsidiaries has been is now delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or or, to the Knowledge of the Company, proposed against Saturn the Company or any of its Subsidiaries, nor has Saturn or any of . The Company and its Subsidiaries have not executed any waiver of any statute of limitations on or (that has not expired) extending the period for the assessment or collection of any material Tax.
(iv) No To the Knowledge of the Company, no audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently currently in progress, nor has Saturn the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any examination that remains outstanding as of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdictiondate hereof.
(v) Neither Saturn the Company nor any of its Subsidiaries has had any liabilities liability for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, as of the Balance Sheet Date that are immaterial to Saturn), which have were not been accrued or reserved on the Saturn Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, and neither Saturn nor any of the Company and its Subsidiaries has have not incurred any liability for Taxes since the date of the Saturn Balance Sheet Date other than in the ordinary course of businessOrdinary Course.
(vi) Neither Saturn nor any of The Company and its Subsidiaries have provided or made available to Parent or its legal counsel copies of all material Returns (as listed in Section 2.13(b)(vi) of the Disclosure Schedule) filed for all periods since January 1, 2004.
(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. The Company has no Knowledge of any basis for the assertion of any claim relating or attributable to Taxes, which, if adversely determined, would result in any Lien on the assets of the Company.
(viii) None of the Company’s assets is treated as “tax exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) Neither the Company nor its Subsidiaries have (a) ever been (1) a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group of which the Company was the common parent of which was Saturnparent), (b2) ever been a party to any Tax sharing, indemnification or allocation agreementContract, nor does Saturn or (3) a party to any of its Subsidiaries owe any amount under any such agreement and joint venture, partnership, limited liability company or other arrangement that could be treated as a partnership for Tax purposes or (cb) any liability for the Taxes of any person Person (other than Saturn Company or any of its Subsidiaries) ), under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, Contract or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesotherwise.
(viix) The Company’s and its Subsidiaries’ Tax basis in their assets for purposes of determining their future amortization, depreciation and other income Tax deductions is accurately reflected on their Tax Books and Records.
(xi) The Company is not and has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xii) No adjustment relating to any Return that has been filed by the Company or its Subsidiaries and for which the period for the making of such adjustment has not expired by the application of a statute of limitation, has been proposed in writing to the Company by any Tax authority.
(xiii) Neither Saturn the Company nor any of its Subsidiaries has have constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-tax free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiixiv) Neither Saturn the Company nor any of its Subsidiaries has have engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xv) Neither the Company nor its Subsidiaries have received written notice of a claim made by a Tax authority in a jurisdiction where it does not currently file Returns that it is or may be subject to Taxation by that jurisdiction.
(xvi) Neither the Company nor its Subsidiaries has in effect any power of attorney (or similar authority) as to any matters regarding Taxes that will remain in effect as of the Effective Time.
(xvii) Neither the Company nor its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of the occurrence or existence of any of the following prior to Closing Date (A) a change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date, (B) any “closing agreement” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Tax law), (C) any intercompany transaction or any excess loss account as described in Treasury Regulation Section 1.1502-19 (or any corresponding provision of state, local or foreign Tax law), (D) any installment sale or open transaction or (E) as a result of any prepaid amount received on or prior to the Closing Date.
(xviii) Section 2.13(b) of the Disclosure Schedule sets forth, by the Tax years in which they arose, the amounts of any unused United States federal net operating loss or net capital loss allocable to the Company and its Subsidiaries as of December 31, 2008. Except as described in Section 2.13(b) of the Disclosure Schedule, prior to the Effective Time of the Merger, the Company will not have undergone an “ownership change” under Section 382(g) of the Code.
(xix) The Company and its Subsidiaries have filed all required Forms 5471 and foreign bank account reporting forms.
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports (“Tax Returns Returns”) relating to any and all Taxes concerning or attributable to Saturnthe Company, its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were true and correct in all material respects and Returns have been completed in accordance with applicable lawlaw in all material respects.
(ii) Saturn The Company and each of its Subsidiaries have timely paid complied in all material Taxes required to be paid. With respect to their employees, Saturn and each respects with the payment or withholding of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees Employees and have been timely paid over to the appropriate Taxing authoritytaxing authority all Taxes required to be paid or withheld except for such failures to do so which have not had and would not be reasonably likely to materially and adversely affect the Company or any of its Subsidiaries.
(iii) Neither Saturn the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn or any of its Subsidiaries, nor has Saturn or any of its Subsidiaries executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn All Taxes due and payable by each of the Company and its Subsidiaries have been timely paid and neither the Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), as of the date of the Company Balance Sheet which have not been accrued or reserved on the Saturn Company Balance Sheet in accordance with GAAP, and neither Saturn the Company nor any of its Subsidiaries has incurred any material liability for Taxes since the date of the Saturn Company Balance Sheet other than in the ordinary course of business.
(vi) There are no Liens other than Permitted Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes.
(vii) Neither Saturn the Company nor any of its Subsidiaries has 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 SaturnCompany), (b) ever been a party to owes any amount under any Tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) has any liability for the Taxes of any person Person (other than Saturn Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and otherwise.
(dix) ever been Neither the Company nor any of its Subsidiaries is a party to or bound by or has any joint ventureobligation under any Tax sharing agreement or Tax allocation, partnership indemnity or other similar agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposesor arrangement.
(viix) Neither Saturn the Company nor any of its Subsidiaries has received any notice of any claim by a Tax authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns to the effect that the Company or any of its Subsidiaries is, or may be, subject to taxation by that jurisdiction.
(xi) Neither the Company nor any Subsidiary has made any payment, or is or shall become obligated (under any Contract entered into on or before the Closing Date) to make any payment, that shall be nondeductible under Section 280G of the Code (or any corresponding provision of state, local or foreign income Tax Legal Requirement)
(xii) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viii) Neither Saturn nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 1 contract
Samples: Merger Agreement (Agilysys Inc)
Tax Returns and Audits. (i) Saturn The Company and each of its Subsidiaries have has (x) prepared and timely filed (taking into account any valid extensions of time to file) all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Saturn, the Company or any of its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw and (y) timely paid all Taxes required to be paid (whether or not shown on any Return).
(ii) Saturn The Company and each of its Subsidiaries have timely paid all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely has paid or withheld with respect to its Employees and other third parties, all federal federal, state and state foreign income taxestaxes and social security charges and similar fees, Federal Insurance Contribution ActAct (“FICA”), Federal Unemployment Tax Act (“FUTA”) and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid such taxes withheld over to the appropriate Taxing authorityauthorities.
(iii) Neither Saturn the Company nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn the Company or any of its Subsidiaries, nor has Saturn 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 material Tax.
(iv) No audit or other examination of any Tax Return of Saturn the Company or any of its Subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, and neither Saturn the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Current Balance Sheet other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all non-U.S., U.S. federal, state and local income, franchise, payroll and unemployment Tax Returns and all property and sales and use Tax Returns for the Company and its Subsidiaries filed for all periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable. Neither Saturn the Company nor any of its Subsidiaries has Knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of 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 SaturnCompany), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn the Company or any of its the Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn Company or any of its the Subsidiaries) under Treas. Reg. 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 contractcontract or agreement, or otherwise otherwise, and (d) ever been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viiix) 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.
(x) Neither Saturn the Company nor any of its Subsidiaries has been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xi) No adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any of the Subsidiaries or any representative thereof. No claim has ever been made by an authority in a jurisdiction where neither the Company nor any of the Subsidiaries files Returns that the Company or any of the Subsidiaries is or may be subject to taxation by that jurisdiction.
(xii) Neither the Company nor any of the 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 (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viiixiii) Neither Saturn the Company nor any of its the Subsidiaries has engaged in a reportable transaction under within the meaning of Treas. Reg. § 1.6011-4(b) or in 4, including a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xiv) Neither the Company nor any of the Subsidiaries will be required to include any income or gain or exclude any deduction or loss from Taxable income as a result of (a) any change in method of accounting under Section 481(c) of the Code, (b) closing agreement under Section 7121 of the Code, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or in the case of each of (a), (b) and (c), under any similar provision of applicable law), (d) installment sale or open transaction disposition or (e) prepaid amount.
(xv) The Company and each of the Subsidiaries is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order of a territorial or non-U.S. government 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 exemption, Tax holiday or other Tax reduction agreement or order.
(xvi) Neither the Company nor any of the Subsidiaries is subject to Tax in any 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 jurisdiction.
(xvii) The prices for any property or services (or for the use of any property) provided by or to the Company or any of the Subsidiaries are arm’s length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Nanometrics Inc)
Tax Returns and Audits. (i1) Saturn AmeriNet and each of its Subsidiaries subsidiaries have accurately prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning relating or attributable to Saturn, AmeriNet or its Subsidiaries subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw in all material respects.
(ii2) Saturn AmeriNet and each of its Subsidiaries subsidiaries have timely paid all material Taxes required to be paid. With paid with respect to their employees, Saturn such Returns and each of have withheld with respect to its Subsidiaries have timely paid or withheld employees all federal and state income taxes, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other material Taxes they are required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritywithhold.
(iii3) Neither Saturn nor The accruals for Taxes on the books and records of AmeriNet and its subsidiaries are sufficient to discharge the Taxes for all periods (or the portion of any of period) ending on or prior to the Effective Date.
(4) AmeriNet and its Subsidiaries has subsidiaries have not been delinquent in the payment of any material TaxTax nor, nor except as disclosed in the Exchange Act Reports, is there any material Tax deficiency outstanding, proposed or assessed against AmeriNet or proposed against Saturn or any of its Subsidiariessubsidiaries, nor has Saturn AmeriNet or any of its Subsidiaries subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv5) Except as disclosed in the Exchange Act Reports:
(a) No audit or other examination of any Tax Return of Saturn AmeriNet or any of its Subsidiaries subsidiaries is presently in progress, nor has Saturn or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(vb) Neither Saturn nor any of AmeriNet and its Subsidiaries has subsidiaries do not have any liabilities for unpaid Taxes (other than federal, 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 basis for the assertion of any such liabilitiesliability attributable to AmeriNet or its subsidiaries, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued their respective assets or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businessoperations.
(vi6) Neither Saturn nor AmeriNet and its subsidiaries are not parties to or bound by 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 Saturn)tax indemnity, (b) ever been a party to any Tax sharing, indemnification tax sharing or tax allocation agreement, nor does Saturn or any of . 76
(7) AmeriNet and its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractsubsidiaries have provided, or otherwise made available to Trilogy or its legal counsel copies of all federal, provincial and (d) ever been a party to any joint venturestate income and all sales and use Tax Returns of AmeriNet or its subsidiaries for all periods since January 1, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes1998.
(vii8) There are (and as of immediately following the Effective Date there will be) Neither Saturn nor any no liens on the assets of AmeriNet or its Subsidiaries has constituted either a “distributing corporation” subsidiaries relating to or a “controlled corporation” in a distribution of stock intended attributable to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerTaxes.
(viii9) Neither Saturn nor AmeriNet and its subsidiaries have no knowledge of any basis for the assertion of any Tax claim which, if adversely determined, would result in liens on the assets of AmeriNet or its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(bsubsidiaries.
(10) There is no contract, agreement, plan or in a transaction arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of AmeriNet or its subsidiaries that, individually or collectively, could give rise to the payment of any amount that is the same as would not be deductible pursuant to Sections 280G, 162 or substantially similar to one 404 of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)Code.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn Novadigm and each of its Subsidiaries have prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports and any amendments thereto (“Tax Returns Returns“) relating to any and all Taxes concerning or attributable to SaturnNovadigm, its Subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) Saturn Novadigm and each of its Subsidiaries have timely paid to the appropriate Taxing authority all material Taxes required to be paid. With respect to their employees, Saturn and each of its Subsidiaries have timely paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and any other material Taxes amounts required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authority.
(iii) Neither Saturn nor any of its Subsidiaries has been delinquent in the payment of any material Tax, nor There is there any material no Tax deficiency outstanding, assessed or or, to the knowledge of Novadigm, proposed against Saturn Novadigm or any of its Subsidiaries, nor has Saturn Novadigm 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 material TaxTax that is still in effect.
(iv) No audit or other examination of any Tax Return of Saturn Novadigm or any of its Subsidiaries is presently in progress, nor has Saturn Novadigm or any of its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn Novadigm nor any of its Subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, for the taxable periods reflected on the Novadigm Balance Sheet that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Novadigm Balance Sheet in accordance with GAAP, and neither Saturn Novadigm nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Novadigm Balance Sheet other than in the ordinary course of business.
(vi) Novadigm has made available to Parent or its legal counsel copies of all Tax Returns for Novadigm and each of its Subsidiaries filed for all open years that have been requested by Parent or its legal counsel.
(vii) There are no Liens on the assets of Novadigm 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 Novadigm or any of its Subsidiaries.
(viii) None of the assets of Novadigm or any of its Subsidiaries is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) Neither Saturn Novadigm nor any of its Subsidiaries has been at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code during the period specified in Section 897(c)(1)(A)(ii) of the Code.
(x) No adjustment relating to any Tax Return filed by Novadigm or any of its Subsidiaries has been proposed formally or, to the knowledge of Novadigm or any of its Subsidiaries, informally by any tax authority to Novadigm, any of its Subsidiaries or any representative thereof.
(xi) Neither Novadigm 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 SaturnNovadigm), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Saturn Novadigm or any of its Subsidiaries owe any amount under any such agreement and agreement, (c) any liability for the Taxes of any person Person (other than Saturn Novadigm or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixii) Neither Saturn Novadigm nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that which could otherwise could constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code Code) in conjunction with the Merger.
(viiixiii) Neither Saturn Novadigm nor any of its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xiv) Novadigm and each of 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 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 exemption, Tax holiday or other or other Tax reduction agreement or order.
(xv) Neither Novadigm nor any of its Subsidiaries are or at any time have been treated as resident in any jurisdiction other than their jurisdiction of incorporation for any Tax purpose (including any double taxation arrangement). Novadigm and each of its Subsidiaries are not subject to Tax in any jurisdiction other than its place 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 jurisdiction, except for income for which any income tax is satisfied through withholding or otherwise paid.
Appears in 1 contract
Tax Returns and Audits. (i1) Saturn AmeriNet and each of its Subsidiaries subsidiaries have accurately prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning relating or attributable to Saturn, AmeriNet or its Subsidiaries subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are true and correct in all material respects and have been completed in accordance with applicable lawlaw in all material respects.
(ii2) Saturn AmeriNet and each of its Subsidiaries subsidiaries have timely paid all material Taxes required to be paid. With paid with respect to their employees, Saturn such Returns and each of have withheld with respect to its Subsidiaries have timely paid or withheld employees all federal and state income taxes, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other material Taxes they are required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their employees have been timely paid over to the appropriate Taxing authoritywithhold.
(iii3) Neither Saturn nor The accruals for Taxes on the books and records of AmeriNet and its subsidiaries are sufficient to discharge the Taxes for all periods (or the portion of any of period) ending on or prior to the Closing Date.
(4) AmeriNet and its Subsidiaries has subsidiaries have not been delinquent in the payment of any material TaxTax nor, nor except as disclosed in the Exchange Act Reports, is there any material Tax deficiency outstanding, proposed or assessed against AmeriNet or proposed against Saturn or any of its Subsidiariessubsidiaries, nor has Saturn AmeriNet or any of its Subsidiaries subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv5) Except as disclosed in the Exchange Act Reports:
(a) No audit or other examination of any Tax Return of Saturn AmeriNet or any of its Subsidiaries subsidiaries is presently in progress, nor has Saturn or any of
(b) AmeriNet and its Subsidiaries been notified of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an authority in a jurisdiction where Saturn or its Subsidiaries subsidiaries do not file Tax Returns that Saturn or any of its Subsidiaries are or may be subject to taxation by that jurisdiction.
(v) Neither Saturn nor any of its Subsidiaries has have any liabilities for unpaid Taxes (other than federal, 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 basis for the assertion of any such liabilitiesliability attributable to AmeriNet or its subsidiaries, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued their respective assets or reserved on the Saturn Balance Sheet in accordance with GAAP, and neither Saturn nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Saturn Balance Sheet other than in the ordinary course of businessoperations.
(vi6) Neither Saturn nor AmeriNet and its subsidiaries are not parties to or bound by 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 Saturn)tax indemnity, (b) ever been a party to any Tax sharing, indemnification tax sharing or tax allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(vii7) Neither Saturn nor any AmeriNet and its subsidiaries have provided, or made available to Xxxxxxx or its legal counsel copies of all federal, provincial and state income and all sales and use Tax Returns of AmeriNet or its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify subsidiaries for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Mergerall periods since January 1, 1999.
(viii8) There are (and as of immediately following the Closing Date there will be) Neither Saturn nor no liens on the assets of AmeriNet or its subsidiaries relating to or attributable to Taxes.
(9) AmeriNet and its subsidiaries have no Knowledge of any basis for the assertion of any Tax claim which, if adversely determined, would result in liens on the assets of AmeriNet or its Subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(bsubsidiaries.
(10) There is no contract, agreement, plan or in a transaction arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of AmeriNet or its subsidiaries that, individually or collectively, could give rise to the payment of any amount that is the same as would not be deductible pursuant to Sections 280G, 162 or substantially similar to one 404 of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2)Code.
Appears in 1 contract
Tax Returns and Audits. (i) Saturn As of the Closing Date, the Company and each of its Subsidiaries subsidiaries will have prepared and timely filed all material required Tax Returns federal, state, local and foreign returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Saturnthe Company, its Subsidiaries subsidiaries or their respective operations, operations and such Tax Returns, as of the time of filing were Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law.
(ii) Saturn As of the Closing Date, the Company and each of its Subsidiaries subsidiaries will have timely paid all material Taxes it is required to be paid. With respect to their employees, Saturn pay and each of its Subsidiaries will have timely withheld or paid or withheld all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other material Taxes required to be paid or withheld. Furthermore, any such amounts withheld by Saturn and each of its Subsidiaries with respect to their its employees have been (and timely paid over to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act (“FICA”), Federal Unemployment Tax Act (“FUTA”) and other Taxes required to be withheld or paid.
(iii) Neither Saturn the Company nor any of its Subsidiaries subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed against Saturn the Company or any of its Subsidiariessubsidiaries, nor has Saturn the Company or any of its Subsidiaries subsidiaries 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 Saturn the Company or any of its Subsidiaries subsidiaries is presently in progress, nor has Saturn the Company or any of its Subsidiaries subsidiaries been notified of any request for such an audit or other examination. .
(v) No adjustment relating to any Tax Return filed claim has ever been made in writing by Saturn or any of its Subsidiaries has been proposed formally or, to the knowledge of Saturn, informally by any Tax authority to Saturn, any of its Subsidiaries or any representative thereof. Neither Saturn nor any of its Subsidiaries has been notified of any claim made by an a taxing authority in a jurisdiction where Saturn or its Subsidiaries do not file Tax Returns that Saturn the Company or any of its Subsidiaries are subsidiaries does not file Returns that it is or may be subject to taxation by that jurisdiction.
(vvi) Neither Saturn Through the date of the Current Balance Sheet, neither the Company nor any of its Subsidiaries subsidiaries has any liabilities for unpaid Taxes (other than such liabilities, including without limitation any penalties or interest thereon, that are immaterial to Saturn), which have not been accrued or reserved on the Saturn Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, and neither Saturn the Company nor any of its Subsidiaries subsidiaries has incurred any liability for Taxes since the date of the Saturn Current Balance Sheet other than in the ordinary course of business.
(vivii) The Company has made available to Parent or its legal counsel copies of all Tax Returns for the Company and each of its subsidiaries filed for all periods since its inception.
(viii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, “Liens”) on the assets of the Company or any of its subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(ix) The Company has no Knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company or any of its subsidiaries.
(x) 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.
(xi) Neither Saturn Company nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(xii) 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 SaturnCompany), (b) ever been a party to any Tax tax sharing, indemnification or allocation agreement, nor does Saturn or any of its Subsidiaries owe any amount under any such agreement and (c) any liability for the Taxes of any person (other than Saturn Company or any of its Subsidiariessubsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contractcontract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other agreement arrangement that to the knowledge of Saturn could be treated as a partnership for Tax purposes.
(viixiii) The Company’s and each of its subsidiaries’ tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company’s tax books and records.
(xiv) Neither Saturn the Company nor any of its Subsidiaries subsidiaries has been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xv) No adjustment relating to any Return filed by the Company or any of its subsidiaries has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any of its subsidiaries or any representative thereof.
(xvi) Neither the Company nor any of its subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution that otherwise could constitute part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the MergerCode.
(viiixvii) Neither Saturn the Company nor any of its Subsidiaries subsidiaries 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.
(xviii) None of the outstanding indebtedness of the Company or any of its subsidiaries constitutes indebtedness with respect to which any interest deductions may be disallowed under Sections 163(i), 163(l) or 279 of the Code or under any other provision of applicable law.
(xix) Neither the Company nor any of its subsidiaries has engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b) or in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
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Samples: Merger Agreement (Polycom Inc)
