Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable. (b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects. (c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business. (d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes. (e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect. (f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties. (g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty. (h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h). (i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution). (j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger. (k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (Clearwire Corp)
Tax. Except as would not reasonably be expected to have a Purchaser Material Adverse Effect:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed by Clearwire or any of its with respect to the Purchaser and the Purchaser Subsidiaries have been timely filed, ; (ii) all Taxes required to be shown on such Tax Returns or otherwise due in respect of the Purchaser and the Purchaser Subsidiaries have been timely paid; (iii) all those such Tax Returns are true, correct and complete in all material respects.
; (civ) All material no adjustment relating to such Tax Returns has been proposed in writing by any Governmental Authority; (v) there are no pending Actions for the assessment or collection of Taxes owed by Clearwire and its Subsidiaries against the Purchaser or the Purchaser Subsidiaries; (whether or not shown vi) there are no Tax liens on any Tax Returnassets of the Purchaser or the Purchaser Subsidiaries; (vii) have been paideach of the Purchaser and the Purchaser Subsidiaries has properly and timely withheld, except for those Taxes being contested in good faith collected and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for deposited all Taxes that may arise solely as result of actions or transactions following are required to be withheld, collected and deposited under applicable Law; (viii) neither the Execution Date permitted by this Agreement, neither Clearwire Purchaser nor any of its the Purchaser Subsidiaries is doing business in or engaged in a trade or business in any jurisdiction in which it has not filed all required Tax Returns; and (ix) neither the Purchaser nor any of the Purchaser Subsidiaries has incurred any liability for the Taxes of any Person (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire Purchaser or any of its the Purchaser Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.); and
(eb) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Purchaser and each of its Subsidiaries have withheld and paid over to Purchaser Subsidiary have, in accordance with applicable Law, duly registered with the relevant Taxing Authorities Government Authority, obtained and maintained the validity of all Taxes required national and local tax registration certificates and complied with all requirements imposed by such Government Authorities. No submissions made to have been withheld and paid any Government Authority in connection with payments to employeesobtaining Tax exemptions, independent contractorsTax holidays, creditorsTax deferrals, shareholders Tax incentives or other third parties.
(g) Neither Clearwire nor preferential Tax treatments or Tax rebates contained any misstatement or omission that would have affected the granting of its Subsidiaries has entered intosuch Tax exemptions, preferential treatments or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposesrebates. No action has been taken by Clearwire suspension, revocation or cancellation of any of its Affiliates to treat NewCo LLC such Tax exemptions, preferential treatments or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) rebates is pending or, to the Purchaser’s Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)threatened.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries Sprint Assets is subject to any material Encumbrance Encumbrances for Taxes, Taxes except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire Sprint or any of its Subsidiaries with respect to the Sprint Assets and the business in which the Sprint Assets have been used have been timely filed, filed and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) All material Taxes owed by Clearwire Sprint and its Subsidiaries (whether or not shown on any Tax Return) with respect to the Sprint Assets and the business in which the Sprint Assets have been used have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in ClearwireSprint’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there There is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiariesrelating to the Sprint Assets and the business in which the Sprint Assets have been used. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire Neither Sprint Sub LLC nor any of its Subsidiaries the Transfer Entities is or by virtue of the LLC Contribution will be (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into a party to any waivers or extensions of the statute of limitations with respect to material TaxesTaxes (in each case other than with respect to Taxes that are the subject of the indemnification provided in Section 13.1 hereof).
(e) Clearwire Sprint has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries the Sprint Assets and the business in which the Sprint Assets have been used that, if upheld, would, individually or would result in the aggregate, reasonably be expected to have payment of a Clearwire Material Adverse Effectmaterial amount of Tax.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Sprint and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesSprint Assets and the business in which the Sprint Assets have been used.
(g) Neither Clearwire Sprint nor any of its Subsidiaries has has, with respect to the Sprint Assets and the business in which the Sprint Assets have been used, entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, ” or any reportable transaction the principal purpose of which was tax avoidance, avoidance within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (Clearwire Corp)
Tax. (a) None of All Seller Entities have timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All appropriate Taxing authorities all material Tax Returns in all jurisdictions in which such Tax Returns are required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
. None of the Seller Entities is the beneficiary of any extension of time within which to file any Tax Return (c) other than any extensions to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes owed by Clearwire and its Subsidiaries of the Seller Entities (whether or not shown on any Tax Return) that are due have been fully and timely paid, except . There are no Liens for those Taxes (other than a Lien for Taxes not yet due and payable or that are being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor appropriate proceedings) on any of its Subsidiaries has incurred the Assets of any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included Seller Entities. No claim has been made in the Clearwire Financial Statements other than last six years in the ordinary course of businesswriting by an authority in a jurisdiction where any Seller Entity does not file a Tax Return that such Seller Entity is or may be subject to Taxes by that jurisdiction.
(db) Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure ScheduleSeller Entities has received any written notice of assessment or proposed assessment in connection with any amount of Taxes, and there is are no currently threatened in writing or pending audit disputes, claims, audits or administrative or judicial proceeding with respect to examinations regarding any Taxes of Clearwire any Seller Entity or the Assets of any of its SubsidiariesSeller Entity. Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure Schedule, neither Clearwire nor Seller Entities has waived any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with in respect to material of any Taxes.
(ec) Clearwire Each Seller Entity has no Knowledge of any proposed or threatened Tax claims or assessments complied in all material respects with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over all applicable Laws relating to the relevant Taxing Authorities all withholding of Taxes and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee or independent contractor, independent contractorsand Taxes required to be withheld and paid pursuant to Sections 1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
(d) The unpaid Taxes of each Seller Entity (i) did not, creditorsas of the most recent fiscal month end, shareholders materially exceed the reserve for Tax Liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) for such Seller Entity and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with past custom and practice of the Seller Entities in filing their Tax Returns.
(e) None of the Seller Entities is a party to any Tax indemnity, allocation or sharing agreement (other than any agreement solely between the Seller Entities and other than any customary Tax indemnifications contained in credit or other third partiescommercial agreements the primary purpose of which agreements does not relate to Taxes) and none of the Seller Entities has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Seller) or has any Tax Liability of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law (other than the other members of the consolidated group the common parent of which is or was Seller), or as a transferee or successor.
(f) During the two-year period ending on the date hereof, none of the Seller Entities was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year period ending on the date hereof, none of the Seller Entities was a United States real property holding corporation within the meaning of Section 897(c)(2) of the Internal Revenue Code.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoEach Seller Benefit Plan, employment agreement, or otherwise participated (directly or indirectly) in, any other compensation arrangement of a Seller Entity that is a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, nonqualified deferred compensation plan” within the meaning of Sections 6011, 6111 or 6112 Section 409A of the Internal Revenue Code has a plan document that satisfies the requirements of Section 409A of the Internal Revenue Code and has been operated in compliance with the Treasury Regulations thereunder terms of such plan document and the requirements of Section 409A of the Internal Revenue Code, and the regulations thereunder, in each case such that no Tax is or has received a written opinion been due or payable under Section 409A of the Internal Revenue Code. No Seller Entity has any obligation to gross-up or otherwise reimburse any person for any Tax incurred by such person pursuant to Section 409A, Section 280G or Section 4999 of the Internal Revenue Code or otherwise. All Seller Stock Options and Seller Warrants were granted at no less than “fair market value” for purposes of Section 409A of the Internal Revenue Code, and each Seller Stock Option and Seller Warrant is exempt from a tax advisor that was intended to provide protection against a tax penaltySection 409A of the Internal Revenue Code.
(h) Except as set forth in Section 6.7(h) None of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal Seller Entities will be required to include after the Closing any material adjustment in taxable income tax purposes. No action has been taken by Clearwire or any of its Affiliates pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) 481 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Internal Revenue Code and the Regulations thereunder (or any comparable provision under state or local income foreign Tax law) or, Laws as a result of transactions or events occurring prior to the Knowledge Closing. None of Clearwire, the Seller Entities have participated in any other material items “reportable transaction” within the meaning of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint Treasury Regulation Section 1.6011-4 or any “tax shelter” within the meaning of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Internal Revenue Code Section 6662.
(ji) Section 6.7(jAll Seller Entities have (i) of to the Clearwire Disclosure sets forthextent deferred, properly complied in all material respects, respects with all applicable Laws in order to defer the information concerning any limitations on amount of the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception employer’s share of any indebtedness issued “applicable employment taxes” under Section 2302 of the CARES Act, (ii) to the extent applicable, eligible, and claimed, or intended to be claimed, properly complied in all material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7004 of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, (iii) not deferred any payroll Tax obligations (including those imposed by Clearwire between Sections 3101(a) and 3201 of the Execution Date and the Closing Internal Revenue Code) (for example, by a failure to timely withhold, deposit or remit such amounts in accordance with Sections 10.1(b)(iv)(Fthe applicable provisions of the Internal Revenue Code and the Treasury Regulations promulgated thereunder) pursuant to or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 any U.S. presidential memorandum or executive order, and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)(iv) not sought a PPP Loan.
Appears in 3 contracts
Samples: Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldwould not, individually or in the aggregate, reasonably be expected to have result in a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Parent and each of its the Subsidiaries have withheld has filed or caused to be filed all U.S. federal, state, local and paid over to the relevant Taxing Authorities all Taxes non-U.S. Tax returns required to have been withheld filed by it (including in its capacity as withholding agent) and each such Tax return is true and correct;
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, Parent and each of the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on the returns referred to in connection clause (a) and all other Taxes or assessments (or made adequate provision (in accordance with payments GAAP) for the payment of all Taxes due), except Taxes or assessments for which Parent or any of the Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with GAAP and, to employeesthe extent such Taxes are due and payable pursuant to a governmental assessment, independent contractorsthe amount thereof is being contested in good faith by appropriate proceedings; and
(c) Other than as would not be, creditorsindividually or in the aggregate, shareholders or other third partiesreasonably expected to have a Material Adverse Effect, as of the Closing Date, with respect to Parent and each of the Subsidiaries, there are no claims being asserted in writing with respect to any Taxes.
(gd) Neither Clearwire nor The Loan Parties are not required to make any Tax Deduction on account of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, Tax imposed by the United Kingdom from any “listed transaction”, or payment they may make under any reportable transaction the principal purpose of Loan Document to a Lender which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.is:
(hi) Except as set forth in Section 6.7(ha Qualifying Lender:
(A) falling within paragraph (a)(i) of the Clearwire Disclosure Schedule, each Subsidiary definition of Clearwire is either Qualifying Lender; or
(xB) treated as except where a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action Direction has been taken given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (a)(ii) of the definition of Qualifying Lender; or
(C) falling within paragraph (b) of the definition of Qualifying Lender; or
(D) that is a QPP Lender in respect of which each of the Loan Parties reasonably believes that it is not a connected person for purposes of the QPP Regulations; or
(ii) a Treaty Lender and the payment is one specified in a direction given by Clearwire or any the Commissioners of its Affiliates to treat NewCo LLC or its Subsidiaries Revenue & Customs under Regulation 2 of the Double Taxation Relief (including Clearwire Sub LLCTaxes on Income) other than as described in Section 1.1(b), Section 1.1(c(General) and this Section 6.7(hRegulations 1970 (SI 1970/488).
(ie) Except as set forth Under the law of its jurisdiction of incorporation it is not necessary that the Loan Documents be filed, recorded or enrolled with any court or other authority in Section 6.7(i) of that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Clearwire Disclosure Schedule, Loan Documents or the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Loan Documents.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 3 contracts
Samples: Credit Agreement (Adient PLC), Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Tax. Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed with any Governmental Authority by Clearwire or on behalf of Parent or any of its Subsidiaries have been timely filed, and filed when due (taking into account any extension of time within which to file); (ii) all those such Tax Returns are true, correct accurate and complete and have been prepared in compliance with all material respects.
applicable Laws; (ciii) All material all Taxes owed due and payable by Clearwire and Parent or any of its Subsidiaries (whether including any Taxes that are required to be collected, deducted or not shown on withheld in connection with any Tax Returnamounts paid or owing to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been paidtimely paid (or collected or withheld and remitted) to the appropriate Governmental Authority, except for those Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result accordance with GAAP in the Parent SEC Documents filed prior to the date of actions or transactions following the Execution Date permitted by this Agreement; (iv) since January 1, neither Clearwire nor 2018, no written claim has been made by any Governmental Authority in a jurisdiction where Parent or any of its Subsidiaries has incurred does not file a Tax Return of a particular type that Parent or any liability of its Subsidiaries is or may be subject to Tax, or required to file Tax Returns, of such type in that jurisdiction, other than any such claims that have been fully resolved; and (whether or not duev) for material Taxes since the date there are no Encumbrances on any of the most recent balance sheet included assets of Parent or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(b) each of Parent and its Subsidiaries has complied with all applicable Laws relating to the Clearwire Financial Statements other than withholding of Taxes and has, within the time and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(c) no outstanding written claim has been received by, and no audit, action, or proceeding is in the ordinary course progress or threatened in writing, against or with respect to Parent or any of business.its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire Parent nor any of its Subsidiaries (i) has any Liability for the Taxes of any Person (other than Parent or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) is a party to any Tax sharing, allocation or bound by any material closing agreement, offer in compromise, gain recognition indemnification agreement or arrangement (other than (x) any other agreement with any Taxing Authority or arrangement solely among Parent or any Tax indemnity or Tax sharing agreement with any personof its Subsidiaries, or (iiy) commercial agreements or arrangements entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes), (iii) has received or applied for a Tax ruling or entered into any waivers or extensions a closing agreement pursuant to Section 7121 of the statute Code (or any similar provision of limitations with respect to material Taxes.state, local or foreign law) or (iv) is, or since January 1, 2018 has been, a member of any affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other than a group the common parent of which is Parent or any of its Subsidiaries);
(e) Clearwire has no Knowledge waiver or extension of any proposed statute of limitations in respect of any Taxes or threatened Tax claims or assessments any extension of time with respect to Clearwire any Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries that, if upheld, would, individually or (other than extensions of time to file Tax Returns obtained automatically in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.ordinary course of business);
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire neither Parent nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any in a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, ” within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h1.6011-4(b)(2) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).Treasury Regulations; and
(ig) Except as set forth in Section 6.7(i) of during the Clearwire Disclosure Schedule, five-year period ending on the Merger and other transactions contemplated by Articles 2, 3 and 4 date of this Agreement will not result in the recognition by NewCo or Agreement, neither Parent nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution of income stock qualifying or gain intended to qualify for tax-free treatment under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j355(a) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerCode.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 3 contracts
Samples: Merger Agreement (Cco Holdings LLC), Merger Agreement (Liberty Broadband Corp), Merger Agreement (Charter Communications, Inc. /Mo/)
Tax. Any and all payments to any Secured Party by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all Taxes excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxes or other Tax based on gross income imposed by the United States of America (all such Taxes, other than those Taxes described in clauses (i) and (ii) of this Section 3.1.2(a), the “Covered Taxes”). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules. If the Borrower shall make any payment with respect to Covered Taxes under this clause (a) None to or for the benefit of the assets of Clearwire any Secured Party and if such Secured Party shall claim any credit or deduction for such Covered Taxes against any of its Subsidiaries is subject to any material Encumbrance for other Taxes payable by such Secured Party that are not Covered Taxes, except for liens for then such Secured Party shall pay to the Borrower an amount equal to the amount such Secured Party determines, absent manifest error, is the amount by which such other Taxes are actually reduced; provided that the aggregate amount payable by such Secured Party pursuant to this sentence shall not yet due and payable.
(b) All material Tax Returns required to be filed exceed the aggregate amount previously paid by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Borrower with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material such Covered Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 3 contracts
Samples: Loan Guarantee Agreement (Oglethorpe Power Corp), Loan Guarantee Agreement (Georgia Power Co), Loan Guarantee Agreement (Oglethorpe Power Corp)
Tax. (a) None of Each Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Company is required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Company are true, correct and complete in all material respects.
(c) . All material Taxes owed (or to be remitted) by Clearwire and its Subsidiaries any Company (whether or not shown on any Tax Return) have been paidpaid to the proper Governmental Body. No claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or may be subject to the payment, except for collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Companies that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.15 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which any Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Taxes being contested in good faith and for which adequate reserves Tax Returns that have been established in Clearwire’s Financial Statements. Except for Taxes audited, (iii) identifies those Tax Returns that may arise solely as result currently are the subject of actions or transactions following the Execution Date permitted by this Agreementaudit, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not dueiv) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding lists all rulings and similar determinations with respect to Taxes of Clearwire requested or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound received by any Company relating to any Company, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material closing agreementelections relating to Taxes that were made by or on behalf of any Company. Hague has delivered or made available to Solterra true, offer in compromisecorrect and complete copies of all Tax Returns filed by, gain recognition agreement and all examination reports, and statements of deficiencies assessed against or agreed to by, any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of Company during the statute of limitations with respect to material Taxessix-year period ending on the date hereof.
(eb) Clearwire Each Company has no Knowledge of any proposed withheld or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatcollected, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities proper Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, stockholder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(c) There is no basis for any Governmental Body to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted by any Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which has Knowledge.
(d) No Company has waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Company has been requested, granted or currently is in effect.
(e) No Company has filed a consent under Code § 341(f), as in effect prior to the Jobs and Growth Tax Reconciliation Act of 2003, concerning collapsible corporations. No Company has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Company is a party to any Tax allocation, sharing, reimbursement or similar agreement. No Company has been a member of any “affiliated group” as defined in Code § 1504(a) (or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated federal, state, local or foreign income Tax Return (other than a group the common parent of which was Hague). No Company has any Liability for Taxes of any Person (other than any Company) under Treasury Regulation § 1.1502-6 (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Company has participated in an international boycott within the meaning of Code § 999. No Company has agreed, or is required to make, any adjustments under Code § 481(a) by reason of a change in method of accounting or otherwise. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the date hereof. No Company has made, or is bound by, any election under Code § 197 or 1361.
(f) The unpaid Taxes of the Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Balance Sheet (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Companies in filing their Tax Returns.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoNo Company has, or otherwise participated (directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) in, any that would constitute (i) a “reportable transaction” or “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707§ 1.6011-5(a)(6)(i)(D)4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(h) The execution and delivery of this Agreement and the performance of the Transactions will not cause Solterra or any Company to have any Liability for any Tax.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Quantum Materials Corp.), Merger Agreement (Hague Corp.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any on behalf of its Subsidiaries the Seller have been duly filed on a timely basis and such Tax Returns were, when filed, and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) . All material Taxes owed shown to be payable on such Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are due and payable by Clearwire and its Subsidiaries the Seller with respect to items or periods covered by such Tax Returns (whether or not shown on any such Tax Return) Returns). The Seller has withheld and paid over all Taxes required to have been paidwithheld and paid over, except and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens (other than Permitted Liens) on any of the Purchased Assets with respect to Taxes.
(b) The amount of the Seller’s liabilities for those unpaid Taxes being contested for all periods through December 31, 2013 does not, in good faith and the aggregate, exceed the amount of the liability accruals for which adequate reserves have been established in Clearwire’s Taxes reflected on the Financial Statements. Except , and the Most Recent Balance Sheet properly accrue in accordance with GAAP all liabilities for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in Seller payable after December 31, 2013 attributable to transactions and events occurring prior to such date. No liability for Taxes of Seller has been incurred or material amount of taxable income has been realized (or prior to and including the Clearwire Financial Statements Closing Date will be incurred or realized) after December 31, 2013 other than in the ordinary course of business.
(dc) Except as disclosed in Section 6.7(d) No audit of the Clearwire Disclosure ScheduleTax Returns of or including the Seller by a Governmental or Regulatory Authority is in process, there is no currently pending audit or, to Seller’s Knowledge, threatened or administrative pending. No deficiencies exist or judicial proceeding have been asserted with respect to Taxes of Clearwire the Seller. Seller has not received notice that it has not filed a Tax Return or paid Taxes required to be filed or paid. Seller is not a party to any action or proceeding for assessment or collection of Taxes, nor, to Seller’s Knowledge, has such event been asserted or threatened against Seller or any of its Subsidiariesthe Purchased Assets. Except as disclosed There are no agreements or waivers currently in Section 6.7(d) effect that provide for an extension of time for the Clearwire Disclosure Schedule, neither Clearwire nor any assessment of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity against the Seller.
(d) No written claim has ever been delivered to the Seller by a Governmental Entity in a jurisdiction where the Seller does not file Tax Returns that the Seller is or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect may be subject to material Taxestaxation by that jurisdiction.
(e) Clearwire Seller is not, and has no Knowledge never been, a party to any tax sharing agreement. Since inception, the Seller has not been a distributing corporation or a controlled corporation in a transaction described in Section 355(a) of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectCode.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Seller has collected and each of its Subsidiaries have withheld and paid over remitted all applicable sales or use Taxes to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesappropriate Governmental Entity.
(g) Neither Clearwire nor any of its Subsidiaries The Seller has entered into, or otherwise participated (directly or indirectly) in, disclosed to the IRS on the appropriate Tax Returns any “Reportable Transaction” (as defined in Treasury Regulation section 1.6011-4(b)) in which the Seller has participated. The Seller has retained all documents and other records pertaining to any Reportable Transaction in which the Seller has participated, including documents and other records listed transaction”, in Treasury Regulation section 1.6011-4(g) and any other documents or other records which are related to any reportable transaction Reportable Transaction in which the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Seller has participated but not listed in Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyRegulation section 1.6011-4(g).
(h) Except as set forth in Section 6.7(h) No bulk sale/transfer statute or law, including, without limitation, the California “Bulk Sales” publication requirements under Division 6 of the Clearwire Disclosure ScheduleCalifornia Commercial Code, each Subsidiary of Clearwire is either (x) treated as a partnership applies to the transaction contemplated hereby and the Buyer will suffer no loss, cost or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) expense because of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 non-compliance of the Code and the Regulations thereunder (parties hereto with any bulk sale/transfer statute or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Icad Inc), Asset Purchase Agreement (Icad Inc)
Tax. Except as would not reasonably be expected to result in a Company Material Adverse Effect:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed with any Tax Authority by Clearwire or on behalf of the Company or any of its Subsidiaries have been timely filedfiled (taking into account any extension of time within which to file) in accordance with all applicable Laws, and (ii) all those such Tax Returns are trueaccurate, correct and complete in all material respects.
respects and have been prepared in compliance with all applicable Laws, and (ciii) All material all Taxes owed due and payable by Clearwire and the Company or any of its Subsidiaries (whether or not shown on including any Tax ReturnTaxes that are required to be deducted and withheld) have been duly and timely paid, except or duly and timely withheld and remitted to the appropriate Tax Authority; except, in each case of clauses (i) through (iii), for those Taxes being or Tax matters contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions accordance with GAAP in the Company SEC Documents filed prior to the date hereof;
(b) since May 1, 2016, no written claim has been made by any Tax Authority in a jurisdiction where the Company or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries does not file a particular type of Tax Return or has incurred not paid a particular type of Tax that the Company or any liability (whether of its Subsidiaries is, or not due) may be, subject to such Tax by or required to file or be included in such a Tax Return in that jurisdiction, other than any such claims that have been fully resolved or for material Taxes since which adequate reserves have been established in accordance with GAAP in the Company SEC Documents filed prior to the date hereof;
(c) there are no Encumbrances on any of the most recent balance sheet included assets of the Company or any of its Subsidiaries that arose in the Clearwire Financial Statements other than in the ordinary course of business.connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(d) Except as disclosed in Section 6.7(d(i) no written notice of any claim, deficiency, adjustment or underpayment has been received by the Clearwire Disclosure Schedule, there is no currently pending audit Company or administrative or judicial proceeding any of its Subsidiaries with respect to any Tax, and no such claim, deficiency, adjustment or underpayment has been threatened in writing, and (ii) no Action in respect of Taxes of Clearwire is in progress, or has been threatened or proposed in writing, against or with respect to the Company or any of its Subsidiaries. Except as disclosed in Section 6.7(d, which Action has not been fully and finally settled;
(e) of neither the Clearwire Disclosure Schedule, neither Clearwire Company nor any of its Subsidiaries (i) has any Liability for Taxes of any other Person (other than those of the Company or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity sharing, allocation or Tax sharing indemnification agreement with (other than (x) any person, or (ii) has entered into any waivers or extensions of agreement solely among the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire Company or any of its Subsidiaries thatand (y) commercial agreements the primary subject matter of which does not relate to Taxes) and (iii) has been a member of any affiliated, if upheldconsolidated, wouldcombined, individually unitary or in other similar group for purposes of filing Tax Returns (other than such a group of which the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.Company or any of its Subsidiaries is the parent);
(f) Except as disclosed no waiver (or agreement or arrangement intended to effect a waiver) extending any statute of limitations in Section 6.7(f) respect of Taxes or any extension of time with respect to any assessment, deficiency or collection with respect to Taxes is in effect for the Clearwire Disclosure Schedule, Clearwire and each Company or any of its Subsidiaries have withheld and paid over (other than as a result of any extension of time to file Tax Returns obtained in the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.ordinary course);
(g) Neither Clearwire neither the Company nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any in a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, ” within the meaning of Sections 6011, 6111 or 6112 Section 1.6011-4(b)(2) of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.Regulations;
(h) Except as set forth in neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” within the meaning of Section 6.7(h355(a)(1)(A) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).Code during the past two years;
(i) Except as set forth in Section 6.7(i) of neither the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or Company nor any of its Subsidiaries of income has received or gain under applied for a Tax ruling or entered into a closing agreement pursuant to Section 1502 7121 of the Code and the Regulations thereunder (or any comparable predecessor provision under or any similar provision of state or local income Tax law);
(j) or, to neither the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (including or portion thereof) ending after the Closing Date, as a result of any income (i) installment sale or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in open transaction disposition made on or prior to the LLC Contribution).
Closing Date, (jii) any election pursuant to Section 6.7(j108(i) of the Clearwire Disclosure sets forthCode (or any similar provision of state, in all material respects, local or foreign law) made with respect to any tax period prior to the information concerning Closing Date or (iii) any limitations on election pursuant to Section 965(h) of the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.Code; and
(k) Any liabilities neither the Company nor any of Clearwire, with the possible exception of its Subsidiaries has any indebtedness issued by Clearwire between the Execution Date material amounts due and the Closing in accordance with Sections 10.1(b)(iv)(F) owing to any Governmental Authority under any applicable Law governing escheat or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)unclaimed property.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Barnes & Noble Inc), Merger Agreement (Barnes & Noble Inc)
Tax. (a) None of Except to the assets of Clearwire or any extent reserved for in the most recent Parent Financial Statements, Parent and each of its Subsidiaries is subject have timely filed, or have caused to any material Encumbrance for Taxesbe timely filed, except for liens for Taxes not yet due and payable.
(b) All all material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(c) All , and all material amounts of Taxes owed by Clearwire and its Subsidiaries (whether shown to be due on such Tax Returns, or not shown on any Tax Return) otherwise owed, have been or will be timely paid, except for those Taxes being contested in good faith . Parent and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any each of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSubsidiaries, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire all income and other material Tax Returns filed by or with respect to any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedulethem, neither Clearwire nor have not waived any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge Taxes or agreed to any extension of any proposed or threatened Tax claims or assessments time with respect to Clearwire a Tax assessment or deficiency other than an extension attributable to an extension to file any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire such Tax Returns. Parent and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities appropriate taxing authority all material Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany current or former employee, independent contractorscontractor, creditorscreditor, shareholders stockholder or other third partiesThird Party and have complied in all material respects with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes.
(gb) Neither Clearwire Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) no Tax Authority has asserted, or threatened in writing to assert, a Tax liability (exclusive of interest) in connection with an audit or other administrative or court proceeding involving Taxes of Parent or any of its Subsidiaries, (ii) neither Parent nor any of its Subsidiaries has entered intodistributed stock of another corporation or has had its stock distributed in a transaction that was purported or intended to be governed, in whole or in part, by Section 355 or Section 361 of the Code within the preceding five years, (iii) neither Parent nor any of its Subsidiaries has participated, or otherwise participated (directly or indirectly) inis currently participating, any in a “listed transaction”” as defined in Treasury Regulations Section 1.6011-4(b), (iv) neither Parent nor any of its Subsidiaries is a party to any agreement or arrangement relating to the apportionment, sharing, assignment or allocation of Taxes (other than an agreement or arrangement solely among the members of a group the common parent of which is Parent or any of its Subsidiaries), or has any reportable transaction the principal purpose liability for Taxes of which was tax avoidance, within the meaning any Person (other than Parent or any of Sections 6011, 6111 or 6112 of the Code and the its Subsidiaries) under Treasury Regulations thereunder Section 1.1502-6 or has received any similar provision of state, local or foreign Law, as a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
transferee or successor, by contract or otherwise, and (hv) Except except as set forth in Section 6.7(h4.14(b) of the Clearwire Parent Disclosure ScheduleLetter, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or neither Parent nor any of its Subsidiaries of income has any net operating losses or gain other Tax attributes presently subject to limitation under Section 1502 Sections 382, 383 or 384 of the Code and or the Regulations thereunder federal consolidated return regulations (or any comparable corresponding or similar provision under state of the state, local or local foreign income Tax law) orLaw), to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) than limitations as a result of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued transactions contemplated by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Tax. Each of the Contributing Parties makes the following representations severally and not jointly and, for the avoidance of doubt, solely with respect to such Contributing Party’s Contributed Interests:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required by applicable Law to be filed by Clearwire or any of its Subsidiaries with respect to such Contributing Party’s Contributed Interests have been duly and timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All material Taxes owed due and payable by Clearwire and its Subsidiaries or with respect to such Contributing Party’s Contributed Interests (regardless of whether or not shown on any Tax Return) have been paidpaid in full.
(c) There is no action, except suit, proceeding, investigation, audit or claim now pending against, or with respect to, such Contributing Party’s Contributed Interests in respect of any material Tax or material Tax assessment, nor has any claim for those Taxes being contested additional material Tax or material Tax assessment been asserted in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted writing by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessTax Authority.
(d) Except as disclosed No written claim has been made by any Tax Authority in Section 6.7(d) of the Clearwire Disclosure Schedule, there a jurisdiction where a Tax Return is no not currently pending audit or administrative or judicial proceeding filed with respect to Taxes of Clearwire such Contributing Party’s Contributed Interests indicating that it is or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party may be subject to or bound by any material closing agreementTax in such jurisdiction, offer nor has any such assertion been threatened. or proposed, in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxeswriting.
(e) Clearwire Such Contributing Party has no Knowledge outstanding request for any extension of time within which to pay any proposed material Taxes or threatened file any Tax claims or assessments Returns with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectsuch Contributing Party’s Contributed Interests.
(f) Except as disclosed in Section 6.7(f) There has been no waiver or extension of any applicable statute of limitations for the Clearwire Disclosure Schedule, Clearwire and each assessment or collection of its Subsidiaries have withheld and paid over any material Taxes with respect to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiessuch Contributing Party’s Contributed Interests.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any Such Contributing Party is not a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, foreign person” within the meaning of Sections 6011, 6111 or 6112 Section 1445 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyCode.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, There are no Tax Liens on such Contributing Party’s Contributed Interests except for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Permitted Liens.
(i) Except None of the Contributing Parties’ Contributed Interests are treated as set forth an interest in a “partnership” as defined in Section 6.7(i) 761 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Code.
(j) For each Contributing Party that is a partnership, limited liability company, grantor trust or Subchapter S corporation under the Code, (a) for the period that the Contributing Party owns RH Units, at no time during such period will “substantially all” (within the meaning of Treasury Regulation Section 6.7(j1.7704-1(h)(3)) of the Clearwire Disclosure sets forthvalue of any beneficial owner’s interest in such Contributing Party be attributable to the Contributing Party’s ownership (direct or indirect) of RH Units; and (b) the Contributing Party does not have, in all material respectsacquiring the RH Units, a principal purpose of permitting Remora Holdings to satisfy the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined 100 partner limitation in Treasury Regulation Section 1.7071.7704-5(a)(6)(i)(D1(h)(1), and, to the best of the Contributing Party’s knowledge, no owner of a beneficial interest in the Contributing Party has such a principal purpose.
Appears in 2 contracts
Samples: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.), Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Tax. (a) None CMI has timely filed, or caused to be filed, all Tax Returns required to be filed by it (all of which returns were correct and complete in all material respects), has timely paid, or caused to be paid, all Taxes due and payable by either of them, and has satisfied in full in all respects all Tax withholding, deposit and remittance requirements imposed on or with respect to CMI, and CMI’s consolidated financial statements for the fiscal period ending December 31, 2008 contain an adequate provision in accordance with Canadian generally accepted accounting principles for all material amounts of Taxes payable in respect of each period covered by such financial statements to the extent such Taxes have not been paid, whether or not due and whether or not shown as being due on any Tax Returns. CMI has made adequate provision in accordance with Canadian generally accepted accounting principles in its books and records for any amount of Taxes material to CMI and accruing in respect of any accounting period ending subsequent to the period covered by such financial statements.
(b) Except as disclosed in writing to Genterra:
(i) CMI has not received any written notification that any issue involving an amount of Taxes has been raised (and is currently pending) by the Canada Customs and Revenue Agency, the United States Internal Revenue Service or any other taxing authority, including any sales tax authority, and no waivers of statutes of limitations or objections to any assessments or reassessments involving an amount of Taxes have been given, filed or requested with respect to CMI;
(ii) CMI has not received any notice from any taxing authority to the effect that any Tax Return is being examined, and CMI has no knowledge of any Tax audit or issue;
(iii) There are no proposed (but unassessed) additional Taxes applicable by CMI and none has been asserted against CMI;
(iv) There are no Tax liens on, or statutory trusts in respect of, any assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, CMI except for liens for Taxes not yet due and payable.; and
(bv) All material Tax Returns required CMI has not received a refund of any Taxes to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respectswhich it was not entitled.
(c) All material Taxes owed by Clearwire CMI has withheld from each payment made to any present or former employees, officers, consultants and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except directors and to all persons who are non-residents of Canada for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date purposes of the most recent balance sheet included in Tax Act all amounts required by Law and have remitted such withheld amounts within the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over prescribed periods to the relevant Taxing Authorities appropriate federal or provincial taxing authority. CMI has remitted all Canada Pension Plan contributions, Employment Insurance premiums, Employer Health Taxes and other Taxes payable by it and has or will have remitted such amounts to the proper taxing authority within the time required by applicable Law. CMI charged, collected and remitted on a timely basis all Taxes required to have been withheld and paid in connection with payments to employeesby applicable Law (including, independent contractorswithout limitation, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 Part IX of the Code and Excise Tax Act (Canada) or the Treasury Regulations thereunder or has received a written opinion from a retail sales tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception legislation of any indebtedness issued province of Canada) on any sale, supply or delivery whatsoever, made by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)CMI.
Appears in 2 contracts
Samples: Amalgamation Agreement (Genterra Inc), Amalgamation Agreement (Genterra Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All federal and state Tax Returns and all other material Tax Returns that were or are required to be filed on or before the Closing Date by Clearwire the Company or any of its Subsidiaries have been or will be timely filedfiled on or before the Closing Date, and all those such Tax Returns are or will be true, correct and complete in all material respects.
respects and were or will be prepared in substantial compliance with all Applicable Laws; (cii) All material all Taxes owed due and owing by Clearwire and the Company or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to the Company's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Company to Parent and adequately reserved for in the Company Financial Statements. Neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Company or any of its Subsidiaries. Neither the Company nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where the Company or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 3.14(b) of the Company Disclosure Letter lists all Tax Returns filed by the Company and its Subsidiaries for taxable periods ended on or after December 31, 2011, indicates those Tax Returns that have been paidaudited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by the Company and each of its Subsidiaries for taxable periods ended on or after December 31, except 2011 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Company or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on the Company’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for those Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in Clearwire’s accordance with GAAP in the Company Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following .
(d) Neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its Subsidiaries has incurred waived any liability (whether statute of limitations in respect of income Taxes or not due) for material Taxes since the date agreed to any extension of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding time with respect to Taxes of Clearwire an income Tax assessment or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesdeficiency.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Company and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesThird Party.
(f) Except as listed on Section 3.14(f) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither the Company nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Company); or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 3.14(f) of the Company Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, the Company and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 3.14(g) of the Company Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Company or any Subsidiary is a party and that is treated as a partnership for federal income Tax purposes.
(h) Neither Clearwire the Company nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where the Company or any Subsidiary does not file Tax Returns that the Company (or such Subsidiary) is or may be subject to taxation by that jurisdiction nor is there any factual or legal basis for any such claim.
(j) Neither the Company nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Company nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Company nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an international boycott within the meaning of Section 999 of the Code.
(m) Neither the Company nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Company and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Company or any Subsidiary, and, except as listed on Section 3.14(n) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has entered into, obtained a private letter ruling or otherwise participated closing agreements from the IRS (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion comparable ruling from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hTaxing Authority).
(io) Except Neither the Company nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as set forth defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 6.7(i) 542 of the Clearwire Disclosure ScheduleCode; or (C) a “passive foreign investment company” nor has the Company or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Merger Code.
(p) The Company and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by Articles 2, 3 and 4 of this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 3.14(q) of the Company Disclosure Letter, there is no agreement, contract or arrangement to which the Company or any Subsidiary is a party that would, individually or collectively, result in the recognition payment of any amount that would not be deductible by NewCo reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Company nor any Subsidiary has been, nor will any of its Subsidiaries them be, required to include any item of income in, or gain under exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 1502 481 of the Code and the Regulations thereunder (or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(js) Section 6.7(j) of the Clearwire Disclosure sets forth, The Company and its Subsidiaries have complied in all material respectsrespects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the information concerning Company and each Subsidiary has established and followed procedures to identify any limitations on unclaimed property and, to the ability of NewCo extent required by Law, remit such unclaimed property to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following applicable Governmental Entity. The Company’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the Mergerforegoing representations.
(kt) Any liabilities All transactions for taxable years for which the statute of Clearwirelimitations is still open (including but not limited to sales of goods, with loans, and provision of services) between (i) the possible exception Company or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Company and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any indebtedness issued by Clearwire reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date face of the Company Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with Sections 10.1(b)(iv)(Fthe past custom and practice of the Company and each Subsidiary in filing its Tax Returns. Since the filing of the Company Financial Statements, neither the Company nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Company operates at least one significant historic business line, or 10.1(b)(iv)(H) owns at least a significant portion of this Agreementits historic business assets, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with each case within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in meaning of Treasury Regulation Regulations Section 1.7071.368-5(a)(6)(i)(D1(d).
(w) The Company has provided or otherwise made available to Parent all of the Company’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Company or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Company or its Subsidiaries that have been received since December 31, 2011.
Appears in 2 contracts
Samples: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All federal and state Tax Returns and all other material Tax Returns that were or are required to be filed on or before the Closing Date by Clearwire the Company or any of its Subsidiaries have been or will be timely filedfiled on or before the Closing Date, and all those such Tax Returns are or will be true, correct and complete in all material respects.
respects and were or will be prepared in substantial compliance with all Applicable Laws; (cii) All material all Taxes owed due and owing by Clearwire and the Company or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Company to Parent and adequately reserved for in the Company Financial Statements. Neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Company or any of its Subsidiaries. Neither the Company nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where the Company or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 3.14(b) of the Company Disclosure Letter lists all Tax Returns filed by the Company and its Subsidiaries for taxable periods ended on or after December 31, 2012, indicates those Tax Returns that have been paidaudited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by the Company and each of its Subsidiaries for taxable periods ended on or after December 31, except 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Company or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on the Company’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for those Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in Clearwire’s accordance with GAAP in the Company Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following .
(d) Neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its Subsidiaries has incurred waived any liability (whether statute of limitations in respect of income Taxes or not due) for material Taxes since the date agreed to any extension of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding time with respect to Taxes of Clearwire an income Tax assessment or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesdeficiency.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Company and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesThird Party.
(f) Except as listed on Section 3.14(f) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither the Company nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Company); or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 3.14(f) of the Company Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, the Company and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 3.14(g) of the Company Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Company or any Subsidiary is a party and that could be treated as a partnership for federal income Tax purposes.
(h) Neither Clearwire the Company nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where the Company or any Subsidiary does not file Tax Returns that the Company (or such Subsidiary) is or may be subject to taxation by that jurisdiction nor is there any factual or legal basis for any such claim.
(j) Neither the Company nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Company nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Company nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an international boycott within the meaning of Section 999 of the Code.
(m) Neither the Company nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Company and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Company or any Subsidiary, and, except as listed on Section 3.14(n) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has entered into, obtained a private letter ruling or otherwise participated closing agreements from the Internal Revenue Service (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion comparable ruling from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hTaxing Authority).
(io) Neither the Company nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; (C) a “passive foreign investment company” nor has the Company or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) The Company and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement and will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as set forth in listed on Section 6.7(i3.14(q) of the Clearwire Company Disclosure ScheduleLetter, there is no agreement, contract or arrangement to which the Merger and other transactions contemplated by Articles 2Company or any Subsidiary is a party that could, 3 and 4 of this Agreement will not individually or collectively, result in the recognition payment of any amount that would not be deductible by NewCo reason of Sections 280G (as determined without regard to Section 280G(b)(4) or any corresponding provision of its Subsidiaries state, local or non-U.S. Tax law), 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Company nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or gain under exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 1502 481 of the Code and the Regulations thereunder (or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date; (iv) as a result of an election under Section 108(i) of the Code; or (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(js) Section 6.7(j) of the Clearwire Disclosure sets forth, The Company and its Subsidiaries have complied in all material respectsrespects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the information concerning Company and each Subsidiary has established and followed procedures to identify any limitations on unclaimed property and, to the ability of NewCo extent required by Law, remit such unclaimed property to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following applicable Governmental Entity. The Company’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the Mergerforegoing representations.
(kt) Any liabilities All transactions for taxable years for which the statute of Clearwirelimitations is still open (including but not limited to sales of goods, with loans, and provision of services) between (i) the possible exception Company or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Company and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any indebtedness issued by Clearwire reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date face of the Company Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with Sections 10.1(b)(iv)(Fthe past custom and practice of the Company and each Subsidiary in filing its Tax Returns. Since the filing of the Company Financial Statements, neither the Company nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Company operates at least one significant historic business line, or 10.1(b)(iv)(H) owns at least a significant portion of this Agreementits historic business assets, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with each case within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in meaning of Treasury Regulation Regulations Section 1.7071.368-5(a)(6)(i)(D1(d).
(w) The Company has provided or otherwise made available to Parent all of the Company’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Company or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Company or its Subsidiaries that have been received since December 31, 2011.
Appears in 2 contracts
Samples: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All federal and state Tax Returns and all other material Tax Returns that were or are required to be filed on or before the Closing Date by Clearwire the Parent or any of its Subsidiaries have been or will be timely filedfiled on or before the Closing Date, and all those such Tax Returns are or will be true, correct and complete in all material respects.
respects and were or will be prepared in substantial compliance with all Applicable Laws; (cii) All material all Taxes owed due and owing by Clearwire and the Parent or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Parent to the Company and adequately reserved for in the Parent Financial Statements. Neither the Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Parent or any of its Subsidiaries. Neither the Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where the Parent or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 4.13(b) of the Parent Disclosure Letter lists all Tax Returns filed by the Parent and its Subsidiaries for taxable periods ended on or after December 31, 2012, indicates those Tax Returns that have been paidaudited and indicates those Tax Returns that currently are the subject of audit. The Company has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by the Parent and each of its Subsidiaries for taxable periods ended on or after December 31, except 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Parent or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on the Parent’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for those Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in Clearwire’s accordance with GAAP in the Parent Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following .
(d) Neither the Execution Date permitted by this Agreement, neither Clearwire Parent nor any of its Subsidiaries has incurred waived any liability (whether statute of limitations in respect of income Taxes or not due) for material Taxes since the date agreed to any extension of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding time with respect to Taxes of Clearwire an income Tax assessment or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesdeficiency.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Parent and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesThird Party.
(f) Except as listed on Section 4.13(f) of the Parent Disclosure Letter, neither the Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither the Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Parent); or (B) has any liability for Taxes of any Person (other than the Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.13(f) of the Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Section 4.13(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Parent or any Subsidiary is a party and that could be treated as a partnership for federal income Tax purposes.
(h) Neither Clearwire the Parent nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where the Parent or any Subsidiary does not file Tax Returns that the Company (or such Subsidiary) is or may be subject to taxation by that jurisdiction nor is there any factual or legal basis for any such claim.
(j) Neither the Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Parent nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an international boycott within the meaning of Section 999 of the Code.
(m) Neither the Parent nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Parent or any Subsidiary, and, except as listed on Section 4.13(n) of the Parent Disclosure Letter, neither the Parent nor any of its Subsidiaries has entered into, obtained a private letter ruling or otherwise participated closing agreements from the Internal Revenue Service (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion comparable ruling from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hTaxing Authority).
(io) Neither the Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; (C) a “passive foreign investment company” nor has the Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) The Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement and will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as set forth in listed on Section 6.7(i4.13(q) of the Clearwire Parent Disclosure ScheduleLetter, the Merger and other transactions contemplated by Articles 2there is no agreement, 3 and 4 of this Agreement will not result in the recognition by NewCo contract or arrangement to which Parent or any of its Subsidiaries is a party that could, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 280G (as determined without regard to Section 280G(b)(4) or any corresponding provision of state, local or non-U.S. Tax law), 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Parent nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or gain under exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 1502 481 of the Code and the Regulations thereunder (or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date; (iv) as a result of an election under Section 108(i) of the Code; or (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(js) Section 6.7(j) of the Clearwire Disclosure sets forth, The Parent and its Subsidiaries have complied in all material respectsrespects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the information concerning Parent and each Subsidiary has established and followed procedures to identify any limitations on unclaimed property and, to the ability of NewCo extent required by Law, remit such unclaimed property to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following applicable Governmental Entity. The Parent’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the Mergerforegoing representations.
(kt) Any liabilities All transactions for taxable years for which the statute of Clearwirelimitations is still open (including but not limited to sales of goods, with loans, and provision of services) between (i) the possible exception Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any indebtedness issued by Clearwire reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date face of the Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with Sections 10.1(b)(iv)(Fthe past custom and practice of the Parent and each Subsidiary in filing its Tax Returns. Since the filing of the Parent Financial Statements, neither the Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Parent operates at least one significant historic business line, or 10.1(b)(iv)(H) owns at least a significant portion of this Agreementits historic business assets, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with each case within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in meaning of Treasury Regulation Regulations Section 1.7071.368-5(a)(6)(i)(D1(d).
(w) The Parent has provided or otherwise made available to the Company all of the Parent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Parent or its Subsidiaries that have been received since December 31, 2011.
Appears in 2 contracts
Samples: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject Any and all payments to any material Encumbrance for TaxesSecured Party or FFB by the Borrower hereunder or under any other Loan Document shall be made free and clear of, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed without deduction for, any and all taxes, levies, imposts, deductions, charges or withholdings imposed by Clearwire any central bank or any of its Subsidiaries have been timely filedother Governmental Authority, and all those Tax Returns are trueliabilities with respect thereto, correct and complete in all material respects.
excluding (ci) All material Taxes owed taxes imposed on or measured by Clearwire and its Subsidiaries the net income (whether however denominated) of such Secured Party or not shown on FFB by any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of actions a present or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor former connection between such Secured Party or FFB and such jurisdiction or political subdivision (other than any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date connection arising as a result of the most recent balance sheet included transactions contemplated by the Loan Documents), and (ii) any withholding taxes or other tax based on gross income imposed by the United States of America that are not attributable to any Change of Law or the interpretation or administration of any Governmental Rule by any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Covered Taxes”). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party or FFB, (A) the Clearwire Financial Statements sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party or FFB receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) Borrower shall pay the full amount deducted to the relevant taxation authority or other than authority in accordance with all Governmental Rules. If the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Borrower shall make any payment with respect to Covered Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in under this Section 6.7(d3.1.2(a) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by for the benefit of any material closing agreement, offer in compromise, gain recognition agreement Secured Party or FFB and if such Secured Party or FFB shall claim any credit or deduction for such Covered Taxes against any other agreement with any Taxing Authority taxes payable by such Secured Party or any Tax indemnity FFB then such Secured Party or Tax sharing agreement with any person, FFB shall pay to the Borrower an amount equal to the amount the Secured Party determines in its reasonable discretion is the amount by which such other taxes are actually reduced; provided that the aggregate amount payable by such Secured Party or (ii) has entered into any waivers or extensions of FFB pursuant to this sentence shall not exceed the statute of limitations aggregate amount previously paid by the Borrower with respect to material such Covered Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Common Agreement (Beacon Power Corp), Common Agreement (Beacon Power Corp)
Tax. (a) None of Except to the assets of Clearwire or any extent reserved for in the most recent Company Financial Statements, the Company and each of its Subsidiaries is subject have timely filed, or have caused to any material Encumbrance for Taxesbe timely filed, except for liens for Taxes not yet due and payable.
(b) All all material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(c) All , and all material amounts of Taxes owed by Clearwire and its Subsidiaries (whether shown to be due on such Tax Returns, or not shown on any Tax Return) otherwise owed, have been or will be timely paid, except for those Taxes being contested in good faith . The Company and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any each of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSubsidiaries, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire all income and other material Tax Returns filed by or with respect to any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedulethem, neither Clearwire nor have not waived any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge Taxes or agreed to any extension of any proposed or threatened Tax claims or assessments time with respect to Clearwire a Tax assessment or deficiency other than an extension attributable to an extension to file any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire such Tax Returns. The Company and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities appropriate taxing authority all material Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany current or former employee, independent contractorscontractor, creditorscreditor, shareholders stockholder or other third partiesThird Party and have complied in all material respects with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes.
(gb) Neither Clearwire Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) no Tax Authority has asserted, or threatened in writing to assert, a Tax liability (exclusive of interest) in connection with an audit or other administrative or court proceeding involving Taxes of the Company or any of its Subsidiaries, (ii) neither the Company nor any of its Subsidiaries has entered intodistributed stock of another corporation or has had its stock distributed in a transaction that was purported or intended to be governed, in whole or in part, by Section 355 or Section 361 of the Code within the preceding five years, (iii) neither the Company nor any of its Subsidiaries has participated, or otherwise participated (directly or indirectly) inis currently participating, any in a “listed transaction”” as defined in Treasury Regulations Section 1.6011-4(b), (iv) neither the Company nor any of its Subsidiaries is a party to any agreement or arrangement relating to the apportionment, sharing, assignment or allocation of Taxes (other than an agreement or arrangement solely among the members of a group the common parent of which is the Company or any of its Subsidiaries), or has any reportable transaction liability for Taxes of any Person (other than the principal purpose Company or any of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the its Subsidiaries) under Treasury Regulations thereunder Section 1.1502-6 or has received any similar provision of state, local or foreign Law, as a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
transferee or successor, by contract or otherwise, and (hv) Except except as set forth in Section 6.7(h3.14(b) of the Clearwire Company Disclosure ScheduleLetter, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of neither the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or Company nor any of its Subsidiaries of income has any net operating losses or gain other Tax attributes presently subject to limitation under Section 1502 Sections 382, 383 or 384 of the Code and or the Regulations thereunder federal consolidated return regulations (or any comparable corresponding or similar provision under state of the state, local or local foreign income Tax law) orLaw), to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) than limitations as a result of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued transactions contemplated by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldnot and would not, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
: (fi) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Parent and each of its Subsidiaries has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns required to be filed by it, and all such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate; (ii) all Taxes owed by the Parent and each of its Subsidiaries that are due (whether or not shown on any Tax Return) have withheld been timely paid, except for Taxes that are being contested in good faith by appropriate proceedings and paid over to the relevant Taxing Authorities that have been adequately reserved against in accordance with IFRS; (iii) all amounts of Taxes required to have been withheld and paid in connection with payments to employeesbe withheld, independent contractors, creditors, shareholders charged or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction collected by the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Parent or any of its Subsidiaries of income have been duly withheld, charged or gain under Section 1502 of collected and have been remitted to the Code and appropriate taxing authority as required by applicable Law; (iv) no deficiency for any Tax has been asserted or assessed by any Governmental Entity in writing against the Regulations thereunder (Parent or any comparable provision under state of its Subsidiaries, except for deficiencies that have been satisfied by payment in full, settled or local income Tax lawwithdrawn or that have been specifically identified in the Audited Financial Statements and adequately reserved against in accordance with IFRS; and (v) or, to for all transactions between the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint Parent or any of its Subsidiaries that are resident in Canada, on the one hand, and any Person not-resident in Canada with whom the Parent or any of such Subsidiaries was not dealing at arm's length for the purposes of the Income Tax Act (including any income Canada), on the other hand, during a taxation year commencing after 1998 and ending on or gain before the date hereof, the Parent and each such Subsidiary has made or obtained records or documents that satisfy the requirements of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
paragraphs 247(4)(a) to (j) Section 6.7(jc) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Income Tax purposes following the Merger.
Act (k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(DCanada).
Appears in 1 contract
Samples: Securities Subscription Agreement (Real Brokerage Inc)
Tax. (a) None Each of the assets of Clearwire Company and the Subsidiary has duly and timely made or any of its Subsidiaries is subject prepared all Tax Returns required to any material Encumbrance for Taxesbe made or prepared by it, except for liens for Taxes not yet due has duly and payable.
(b) All material timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit with the appropriate Governmental Body and has duly, completely and correctly reported all income and all those Tax Returns other amounts and information required to be reported thereon.
(b) Each of the Company and the Subsidiary has duly and timely paid all Taxes, including all instalments on account of Taxes for the current year, that are true, correct due and complete in payable by it whether or not assessed by the appropriate Governmental Body. Provision has been made on the Interim Balance Sheet for amounts at least equal to the amount of all material respectsTaxes owing by the Company that were not yet due and payable by the date of the Interim Balance Sheet and that relate to periods ending on or prior to the date of the Interim Balance Sheet. Provision will be made on the Closing Balance Sheet for amounts at least equal to the amount of all Taxes owing by the Company and the Subsidiary that will not be due and payable by the Closing Date and that relate to periods ending on or prior to the Closing Date.
(c) All material Taxes owed by Clearwire and its Subsidiaries Neither the Company nor the Subsidiary has requested, offered to enter into or entered into any agreement or other arrangement, or executed any waiver, providing for any extension of time within which (whether or not shown on i) to file any Tax Return) have been paid, except for those Return covering any Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except either the Company or the Subsidiary is or may be liable; (ii) to file any elections, designations or similar filings relating to Taxes for which either the Company or the Subsidiary is or may be liable; (iii) either the Company or the Subsidiary is required to pay or remit any Taxes that or amounts on account of Taxes; or (iv) any Governmental Body may arise solely as result of actions assess or transactions following collect Taxes for which either the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether Company or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessSubsidiary is or may be liable.
(d) Except as disclosed Other than those agreements and arrangements described in Section 6.7(d) of Schedule 5.15, neither the Clearwire Disclosure ScheduleCompany nor the Subsidiary has made, there is no currently pending audit prepared and/or filed any elections, designations or administrative or judicial proceeding with respect similar filings relating to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers agreement or extensions other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the statute of limitations with respect to material TaxesClosing Date.
(e) Clearwire has no Knowledge All income, sales (including goods and services, harmonized sales and provincial or territorial sales) and capital Tax liabilities of any proposed the Company and the Subsidiary have been assessed by the relevant Governmental Bodies and notices of assessment have been issued to the Company and the Subsidiary by the relevant Governmental Bodies for all taxation years or threatened Tax claims periods ending prior to and including the taxation year or assessments with respect to Clearwire or any of its Subsidiaries thatperiod ended December 31, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect2011.
(f) Except as disclosed There are no proceedings, investigations, audits or claims now pending or threatened against either the Company or the Subsidiary in Section 6.7(f) respect of the Clearwire Disclosure Scheduleany Taxes and there are no matters under discussion, Clearwire and each of its Subsidiaries have withheld and paid over audit or appeal with any Governmental Body relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesTaxes.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 Each of the Code Company and the Treasury Regulations thereunder Subsidiary has duly and timely withheld all Taxes and other amounts required by Law to be withheld by it (including Taxes and other amounts required to be withheld by it in respect of any amount paid or credited or deemed to be paid or credited by it to or for the account or benefit of any Person, including any Employee, officer or director and any non-resident Person), and has received a written opinion from a tax advisor that was intended duly and timely remitted to provide protection against a tax penaltythe appropriate Governmental Body such Taxes and other amounts required by Law to be remitted by it.
(h) Except as set forth in Section 6.7(h) Each of the Clearwire Disclosure ScheduleCompany and the Subsidiary has duly and timely collected all amounts on account of any sales or transfer taxes, each Subsidiary of Clearwire is either (x) treated as a partnership including goods and services, harmonized sales and provincial or (y) disregarded as an entity separate from its ownerterritorial sales taxes, for U.S. federal income tax purposes. No action required by Law to be collected by it and has been taken duly and timely remitted to the appropriate Governmental Body any such amounts required by Clearwire or any of its Affiliates Law to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)be remitted by it.
(i) Except pursuant to this Agreement or as set forth specifically disclosed in Section 6.7(i) writing to Buyer, for purposes of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Tax Act or any other applicable Tax statute, no Person or group of its Subsidiaries of income Persons has ever acquired or gain under Section 1502 had the right to acquire control of the Code and Company other than the Regulations thereunder (Seller or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Seller Shareholders.
(j) Section 6.7(j) None of sections 78, 80, 80.01, 80.02, 80.03 or 80.04 of the Clearwire Disclosure sets forthTax Act, in all material respectsor any equivalent provision of the Tax legislation of any province or any other jurisdiction, have applied or will apply to either the information concerning Company or the Subsidiary at any limitations on time up to and including the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerClosing Date.
(k) Any liabilities Neither the Company nor the Subsidiary has acquired property from a non-arm’s length Person, within the meaning of Clearwirethe Tax Act, for consideration, the value of which is less than the fair market value of the property acquired in circumstances which could subject it to a liability under section 160 of the Tax Act.
(l) For all transactions between either the Company or the Subsidiary and any non-resident Person with whom either the possible exception Company or the Subsidiary was not dealing at arm’s length during a taxation year commencing after 1998 and ending on or before the Closing Date, either the Company or the Subsidiary, as applicable, has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act.
(m) The Company is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax and under Division I of Chapter VIII of Title I of the Quebec Sales Tax Act with respect to the Quebec sales tax, the Company’s registration number is for the purposes of the Excise Tax Act is 10540 3646 RT0001and with respect to the Quebec Sales Tax Act is 1215330351.
(n) The only reserves under the Tax Act or any indebtedness issued equivalent provincial or territorial statute to be claimed by Clearwire between either the Execution Date Company or the Subsidiary for the taxation year ended immediately prior to the acquisition of control by Buyer are disclosed in Schedule 5.15.
(o) Buyer has been provided with copies of all Tax Returns and all communications to or from any Governmental Body relating to the Taxes of the Company and the Closing Subsidiary, to the extent relating to periods or events in accordance with Sections 10.1(b)(iv)(Frespect of which any Governmental Body may by Law assess or otherwise impose any such Tax on the Company or the Subsidiary. Schedule 5.15(o) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. sets forth the following federal income tax purposes information as of the most recent practicable date: (i) the basis of each of the Company and the Subsidiary in its assets; and (ii) the amount of any non-capital losses available for carryover, net capital losses, and unused investment or other credit of each of the Company and the Subsidiary.
(p) Neither the Company nor the Subsidiary does, or has in the past five years, conducted any business or had any offices, operations (including with respect to be assumed by NewCo LLC the Business), Employees or other agents or representatives in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)United States.
Appears in 1 contract
Samples: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Tax. Except as otherwise disclosed to Buyer on Schedule 4.18: (ai) None of the assets of Clearwire or any of its Subsidiaries is subject to any Company has duly and timely filed with the appropriate Governmental Authority all material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns tax returns required to be filed (taking into account any valid extensions) by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns it; (ii) such tax returns are true, complete and correct and complete in all material respects.
respects and accurately reflect all liability for taxes of the Company for the periods covered thereby; (ciii) All the Company is not currently the beneficiary of any extension of time within which to file any tax return; (iv) all material Taxes owed taxes due and owing by Clearwire and its Subsidiaries the Company (whether or not shown on any Tax Returntax return) have been paidpaid within the time required by Applicable Law, except for those Taxes being contested in good faith and for which adequate reserves have been established on the Company’s financial statements in Clearwire’s Financial Statements. Except accordance with GAAP for Taxes any taxes that may arise solely as result are not yet due and payable, for all taxable periods, or portions thereof; (iv) the Company has not waived any statute of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred limitations affecting any liability for taxes or agreed to any extension of time during which a tax assessment or deficiency assessment may be made or extending the time within which to file any tax return; (whether or v) the Company has not due) for material Taxes since the date granted any power of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding attorney with respect to Taxes of Clearwire any taxes that is currently in force; (vi) there are no currently ongoing or pending audits, suits, claims, investigations, examinations, litigations or other proceedings by any of its Subsidiaries. Except as disclosed in Section 6.7(d) Governmental Authority with respect to any taxes of the Clearwire Disclosure ScheduleCompany, neither Clearwire nor and the Company has not received notice of the commencement of any audit, suit, claim investigation, examination, litigation or other proceeding concerning any taxes of its Subsidiaries the Company; (ivii) the Company has not been subject to tax in a jurisdiction in which it does not currently file tax returns or pay taxes and no claim has been made since inception of the Company by any Governmental Authority in a jurisdiction where the Company does not file tax returns that the Company is or may be subject to taxation by that jurisdiction; (viii) all deficiencies for material taxes asserted or assessed against the Company have been fully and timely paid or settled; (ix) the Company is not negotiating any final or draft assessment or reassessment in respect of taxes with any Governmental Authority; (x) the Company is not a party to any tax sharing, indemnity or bound by any material closing similar agreement, offer in compromise, gain recognition agreement or and does not have any liability for the taxes of any other agreement with any Taxing Authority Person as a transferee or any Tax indemnity or Tax sharing agreement with any personsuccessor, or by contract or otherwise; (iixi) the Company has entered into not received any waivers refund of taxes to which it is not entitled; (xii) the Company is not subject to any joint venture, partnership or extensions other arrangement or contract that is treated as a partnership for income tax purposes in any jurisdiction; (xiii) all material taxes which the Company is obligated to withhold, collect or remit in respect of the statute of limitations with respect to material Taxes.
amounts allocable, credited, paid or owing (e) Clearwire has no Knowledge of including any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected amount deemed to have a Clearwire Material Adverse Effect.
(fbeen credited or paid) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Scheduleto any employee, Clearwire independent contractor, director, officer, creditor, partner or other Person have been duly withheld or collected and each of its Subsidiaries have withheld and been timely remitted or paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders proper Governmental Authority or other third parties.
Person (gor set aside for payment when due); (xiv) Neither Clearwire nor any there are no liens for taxes upon the assets or properties of its Subsidiaries the Company; (xv) the Company has entered into, or otherwise not participated (directly or indirectly) in, any in a “listed transaction”,” as defined in Treasury Regulation §1.6011-4(b)(2); and (xvi) the Company is, or any reportable transaction the principal purpose of which was tax avoidanceand has been at all times since its formation, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except classified as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) an entity disregarded as an entity separate from its owner, owner for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Shell Midstream Partners, L.P.)
Tax. (ai) None RBC and the Subsidiary (and any affiliated group of which RBC or the assets Subsidiary is now or has been a member), has duly and timely filed with the appropriate taxing authorities all returns (including, without limitation, information returns and reports) in respect of Clearwire or any of its Subsidiaries is subject to any material Encumbrance Taxes for Taxesall periods through the date hereof, except for liens state and Federal returns for the 1991 taxable year for which appropriate requests for extensions have been made;
(ii) All Taxes due prior to the date hereof in respect of periods beginning before the date hereof have been paid in full, or an adequate reserve has been established therefor, as set forth in the Balance Sheet, and neither RBC nor the Subsidiary has any liability for Taxes not yet due and payablein excess of the amounts so paid or reserves so established.
(biii) All material Tax Returns required Except as set forth on Schedule 3.2(1), (A) no deficiencies for Taxes have been claimed, proposed or assessed by any taxing or other governmental authority; (B) there are no completed, pending or threatened audits, investigations or claims for or relating to be filed by Clearwire any liability in respect of Taxes, and there are no matters under discussion with any governmental authorities with respect to Taxes that are likely to result in an additional amount of Taxes; (C) neither RBC nor the Subsidiary has been notified that any taxing authority intends to audit a return for any other period; and (D) no extension of a statute of limitations relating to Taxes is in effect, or any of its Subsidiaries have been timely filedrequest therefor pending, and all those Tax Returns are true, correct and complete in all material respectswith respect to RBC or the Subsidiary.
(civ) All material The only election with respect to Taxes owed affecting RBC or any Subsidiary as of the date hereof is the election of 52-53 week taxable year pursuant to Treas. Reg. S 1.441-2T(c)(2), filed with RBC's federal income tax return for the taxable year ending October 29, 1988.
(v) Neither RBC nor the Subsidiary: (i) has made or will make a deemed dividend election under Treas. Reg. S l.1502-32(f)(2) or a consent dividend election under section 565 of the Internal Revenue Code of 1986, as amended (the "Code"); (ii) has consented at any time under section 341(f)(1) of the Code, to have the provisions of section 341(f)(2) of the Code apply to any disposition of the RBC's or the Subsidiary's assets; (iii) has agreed, or is required, to make any adjustment under section 481(a) of the Code by Clearwire and its Subsidiaries reason of a change in accounting method or otherwise; or (whether or not shown on any Tax Returniv) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor has made any of its Subsidiaries has incurred the foregoing elections or is required to apply any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included foregoing rules under any comparable state or local income tax provision.
(vi) Neither RBC nor the Subsidiary has, at any time, been an includable corporation in an affiliated group of corporations, within the Clearwire Financial Statements meaning of section 1504 of the Code, other than in the ordinary course affiliated group of businesswhich RBC is the common parent corporation.
(dvii) Except as disclosed in Section 6.7(d) of Neither RBC nor the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) Subsidiary is a party to any tax-sharing agreement or bound similar arrangement with respect to or involving RBC or the Subsidiary, including any terminated agreement as to which RBC or the Subsidiary could have any continuing liability.
(viii) Neither RBC nor the Subsidiary is a "foreign person" as defined in section 1445(f)(3) of the Code.
(ix) Neither RBC nor the Subsidiary is a party to any joint venture, partnership, or other arrangement or contract which is treated as a partnership for federal income tax purposes.
(x) Neither RBC nor the Subsidiary has made or become obligated to make, or will make, as a result of any event connected with the acquisition of RBC and the Subsidiary by any material closing agreement, offer in compromise, gain recognition agreement Buyer or any other agreement with transaction contemplated herein, any Taxing Authority "excess parachute payment" as defined in section 280G of the Code (without regard to subsection (b)(4) thereof).
(xi) There are no outstanding balances of deferred gain or loss accounts related to deferred intercompany transactions between RBC and the Subsidiary.
(xii) The amount of consolidated net operating losses, net capital losses, foreign tax credits, investment, and other tax credits of the consolidated group of which RBC is the common parent allocable to RBC and the Subsidiary under Treas. Reg. S 1.1502-79 as of the taxable year ending November 3, 1990 is set forth in the consolidated federal income tax return filed for that period.
(xiii) RBC has no excess loss account in the Subsidiary.
(xiv) Neither RBC nor the Subsidiary has any Tax indemnity or Tax sharing agreement with any person(i) investment tax credit subject to recapture, or (ii) has entered into any waivers or extensions foreign losses of the statute consolidated group of limitations with respect which RBC is the common parent allocable to material TaxesRBC and the Subsidiary under Treas. Reg. S 1.1502-9 and subject to recapture.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(gxv) Neither Clearwire RBC nor any of its Subsidiaries the Subsidiary has entered intoparticipated in, or otherwise participated (directly or indirectly) incooperated with, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, international boycott within the meaning of Sections 6011, 6111 or 6112 Section 999 of the Code and nor has any such corporation had operations prior to the Treasury Regulations thereunder Effective Time which are or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltymay thereafter become reportable thereunder.
(hxvi) Except as set forth in Section 6.7(h) No power of attorney granted by RBC of the Clearwire Disclosure Schedule, each Subsidiary with respect to the determination of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described material Taxes in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)force.
(ixvii) Except as set forth in Section 6.7(i) There are no material liens for Taxes upon the assets of RBC or the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will Subsidiary except for statutory liens for taxes not result in the recognition by NewCo yet due or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)delinquent.
(jxviii) Section 6.7(j) of the Clearwire Disclosure sets forthAs used herein, in all material respects"Taxes" means any Federal, the information concerning state, local, foreign or other tax assessments or other governmental charges, including, without limitation, any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireincome, with the possible exception of any indebtedness issued by Clearwire between the Execution Date estimated income, business, occupation, franchise, property, sales, employment or withholding tax, including interest, penalties and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC additions in connection with therewith for which RBC or the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Subsidiary is or may be liable.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Except as set forth in Schedule 2.12: all Material Tax Returns required to be filed by Clearwire or any of its Subsidiaries PNGTS have been or will be timely filed, and filed with the appropriate taxing authorities in all those jurisdictions in which such Tax Returns are required to be filed;
(a) such Tax Returns are or will be true, correct and complete in all material Material respects., and all Taxes reported on such Tax Returns and all Taxes owed by PNGTS or for which PNGTS may be liable have been or will be timely paid;
(b) PNGTS has not extended or waived the application of any statute of limitations of any jurisdiction regarding the assessment or collection of any Tax;
(c) All material Taxes owed there are no audits, claims, assessments, levies, administrative proceedings, or lawsuits pending, or to the Knowledge of Seller, threatened against PNGTS by Clearwire any taxing authority and its Subsidiaries (whether or PNGTS has not shown received any written notices from any taxing authority relating to any issue which could have a Material effect on any the Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result liability of actions or transactions following PNGTS after the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.Closing Date;
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound claim has ever been made by any material closing agreement, offer taxing authority in compromise, gain recognition agreement a jurisdiction where PNGTS does not file Tax Returns that it is or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect may be subject to material Taxes.taxation in that jurisdiction;
(e) Clearwire has there are no Knowledge Liens for Taxes (other than Permitted Encumbrances) upon the assets of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.PNGTS;
(f) Except as disclosed in none of the assets of PNGTS, directly or indirectly, secures any debt the interest on which is tax exempt under Section 6.7(f103(a) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.Code;
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, Seller is not a person other than a United States person within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a transactions contemplated herein are not subject to the tax advisor that was intended to provide protection against a tax penalty.withholding provisions of the Code;
(h) Except all Taxes which PNGTS is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld or collected, and have been or will be timely paid over to the proper authorities to the extent due and payable;
(i) there are no Tax sharing, allocation, indemnification or similar agreements in effect as set forth in between PNGTS, on the one hand, and any other party (including Seller and its other Affiliates and any predecessors thereof), on the other hand, under which Buyer or PNGTS could be liable for any Taxes of any such party for any periods or portions thereof after the Closing Date;
(j) PNGTS does not have any liability for the Taxes of any Person under Treasury Regulations Section 6.7(h1.1502-6 (or any corresponding provisions of state, local or foreign Tax law), or as a transferee or successor, by contract or otherwise;
(k) PNGTS has not applied for, nor been granted, nor agreed to any accounting method change for which it will be required to take into account any adjustment
(l) under Section 481 of the Clearwire Disclosure ScheduleCode or any similar provision of the Code or the corresponding tax laws of any nation, each Subsidiary state or locality;
(m) PNGTS has not entered into any agreement or arrangement with any taxing authority that requires it to take any action or to refrain from taking any action and PNGTS is not a party to any agreement with any taxing authority that would be terminated or adversely affected as a result of Clearwire is either the transactions contemplated by this Agreement;
(xn) treated PNGTS has not participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b) (and all predecessor regulations); and
(o) PNGTS is, and has been since inception, properly classified as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action PNGTS has been taken by Clearwire or any of a valid Section 754 election in effect with respect to its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint taxable year that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and includes the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Date.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any Brigus and each of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material affiliates has duly and timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Taxes owed by Clearwire Brigus and each of its Subsidiaries (whether and affiliates has paid on a timely basis all Taxes which are due and payable, all assessments and reassessments, and all other Taxes due and payable by them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Brigus. Except Brigus and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Brigus for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Brigus and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire Brigus or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSubsidiaries or affiliates, and neither Clearwire Brigus nor any of its Subsidiaries (i) or affiliates is a party to any action or bound proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Brigus, threatened against Brigus or any of its Subsidiaries or affiliates or any of their respective assets.
(d) No claim has been made by any material closing agreement, offer Governmental Entity in compromise, gain recognition agreement a jurisdiction where Brigus or any other agreement with any Taxing Authority of its Subsidiaries or affiliates does not file Tax Returns that Brigus or any of its Subsidiaries or affiliates is or may be subject to Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesby that jurisdiction.
(e) Clearwire has There are no Knowledge of any proposed or threatened Tax claims or assessments Liens (other than Permitted Encumbrances) with respect to Clearwire Taxes upon any of the assets of Brigus or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectaffiliates.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Brigus and each of its Subsidiaries have and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and paid over has remitted all such amounts to the relevant Taxing Authorities all Taxes appropriate Governmental Entity when required by Law to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesdo so.
(g) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of Taxes due from Brigus or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Brigus and each of its Subsidiaries and affiliates has made available to Primero true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Clearwire Brigus nor any of its Subsidiaries or affiliates has entered into, or otherwise participated (ever directly or indirectlyindirectly transferred any property to or supplied any services to or acquired any property or services from a Person with whom it was not dealing at arm's length (for the purposes of the Tax Act) infor consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, any “listed transaction”supply or acquisition of the property or services.
(j) There are no circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any reportable transaction the principal purpose of which was tax avoidanceequivalent provision under provincial or foreign Law, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Brigus or any of its Subsidiaries or affiliates. None of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or Brigus nor any of its Subsidiaries (including or affiliates has made, prepared and/or filed any income elections, designations or gain similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Subsidiaries of Sprint Taxes or Tax Returns that become Subsidiaries of NewCo in has effect for any period ending after the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Each of ClearwireBrigus and Brigus SpinCo and Brigus Gold ULC, with 7153945 Canada Inc., and Linear Gold Holdings Corp. is not a non-resident of Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date Tax Act. Each of Brigus’ Subsidiaries (other than Brigus SpinCo, Brigus Gold ULC, 7153945 Canada Inc., and Linear Gold Holdings Corp.) is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (ai) None of the assets of Clearwire or any The Company and each of its Subsidiaries is subject subsidiaries have timely filed, or caused to be filed, without relying on any material Encumbrance for Taxesextensions of filing deadlines, except for liens for Taxes not yet due and payable.
(b) All material all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedthem through the date hereof, and shall timely file all those Tax Returns required to be filed on or before the Effective Time. All such Tax Returns are and will be true, correct and complete in all material respects.
(c) All material . The Company and each of its subsidiaries have paid, or caused to be paid, all Taxes owed that are due and payable prior to the date hereof, and will continue to pay all Taxes when due from the date hereof to the Effective Time. The Interim Financial Statements contain an adequate provision in accordance with GAAP for all Taxes payable by Clearwire the Company and its Subsidiaries (subsidiaries for all taxation years and portions thereof through the date of such financial statements, whether or not due and whether or not shown as being due on any Tax Return) Returns. The Company and each of its subsidiaries have been paid, except made adequate provision in their respective books and records for those any Taxes being contested which have accrued in good faith and for which adequate reserves have been established in Clearwire’s respect of any period subsequent to the period covered by such Interim Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since Since the date of the most recent balance sheet included such Interim Financial Statements, no material Tax liability not reflected in the Clearwire Financial Statements such statements has been assessed, proposed to be assessed, incurred or accrued other than in the ordinary course of business. The Company and each of its subsidiaries have withheld from all payments made by them, or otherwise collected, all material amounts in respect of Taxes required to be withheld therefrom or collected by them, and have remitted same to the applicable Governmental Entity within the required time periods. Neither the Company nor any of its subsidiaries has any liability for the Taxes of any other person.
(dii) Except as disclosed in Section 6.7(dNeither the Company nor any of its subsidiaries has received any notice of deficiency or proposed adjustments or any written notification that any material issues have been raised (and are currently pending) by the Canada Customs and Revenue Agency or any other Governmental Entity, including, without limitation, any sales tax authority, and no waivers of the Clearwire Disclosure Schedule, there is no currently pending audit statutes of limitations have been given or administrative or judicial proceeding requested with respect to Taxes of Clearwire the Company or any subsidiary. No claim or deficiency for any taxes has been proposed, threatened, asserted or assessed by the Canada Customs and Revenue Agency or any other Governmental Entity against the Company, or any of its Subsidiariessubsidiaries which, if resolved against the Company or any of its subsidiaries, would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon the Company. Except as disclosed No claim has ever been made by a taxing authority in Section 6.7(d) of a jurisdiction where neither the Clearwire Disclosure Schedule, neither Clearwire Company nor any of its Subsidiaries subsidiaries files Tax Returns that the Company or any of its subsidiaries is or may be subject to Taxes assessed by such jurisdiction and, to the knowledge of the Company, neither the Company nor any of its subsidiaries is liable for Taxes in any jurisdiction where it has not filed a Tax Return. None of the Company and its subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. All Tax liability of the Company and its subsidiaries has been assessed for all fiscal years up to and including the fiscal year ended January 31, 2000. To the knowledge of the Company, there are no material proposed (ibut unassessed) additional Taxes of the Company or any of its subsidiaries and none has been asserted against the Company or any of its subsidiaries. No Tax liens have been filed against the Company or any of its subsidiaries other than for Taxes not yet due and payable. Neither the Company nor any of its subsidiaries is a party to or bound by any material closing tax allocation or tax sharing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or . Except as set forth in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over Letter relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employeesCompany, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire neither the Company nor any of its Subsidiaries subsidiaries has entered intobeen a member of any group filing a combined, consolidated, unitary or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal similar Tax Return. The paid-up capital for purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 Income Tax Act (Canada) of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyCompany Common Shares is no less than CAD $100,000,000.
(hiii) Except as set forth in the Disclosure Letter, neither the Company nor any of its subsidiaries owns any assets that are used in the conduct of a trade or business in the U.S. None of the Company and its subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that would not be deductible under Section 6.7(h280G of the United States Internal Revenue Code or any other applicable laws. None of the Company and its subsidiaries has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire United States Internal Revenue Code or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described applicable Laws during the applicable period specified in Section 1.1(b), Section 1.1(c) and this Section 6.7(h897(c)(1)(A)(ii).
(iiv) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed (a) "Tax" and "Taxes" means, with respect to any entity, (i) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings, gains or profits) and all capital taxes, gross receipts taxes, environmental taxes, sales taxes, use taxes, ad valorem taxes, value added taxes, transfer taxes, franchise taxes, license taxes, withholding taxes, payroll taxes, employment taxes, employer health taxes, Canada or Quebec Pension Plan premiums, excise, severance, social security premiums, workers' compensation premiums, unemployment insurance or compensation premiums, stamp taxes, occupation taxes, premium taxes, property taxes, windfall profits taxes, alternative or add-on minimum taxes, goods and services taxes, harmonized sales taxes, customs duties or other taxes, fees, imposts, assessments or charges of any kind whatsoever, together with any interest and any penalties or additional amounts imposed by any federal, provincial, state, local, municipal or other taxing authority (domestic or foreign) on such entity, and any interest, penalties, additional taxes and additions to tax imposed with respect to the foregoing, and (ii) any liability for U.S. federal income tax purposes the payment of any amount of the type described in the immediately preceding clause (i) as a result of being a "transferee" (within the meaning of Section 6901 of the United States Internal Revenue Code or any other applicable Laws) of another entity or a member of an affiliated or combined group; and (b) "Tax Returns" means all returns, declarations, reports, information returns and statements required to be assumed by NewCo LLC in connection filed with the transactions described in Articles 3 any Governmental Entity relating to Taxes (including any attached schedules), including, without limitation, any information return, claim for refund, amended return and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)declaration of estimated Tax.
Appears in 1 contract
Samples: Combination Agreement (Roxio Inc)
Tax. For purposes of this Section 6.17, the term “Seller” shall be construed to refer also to each predecessor-in-interest of Seller and each other Person for whose liability for Taxes Seller has or may have Liability.
(a) None of the assets of Clearwire Seller has filed or any of its Subsidiaries is subject caused to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material be filed on a timely basis all Tax Returns and all reports with respect to Taxes that are or were required to be filed pursuant to Applicable Requirements by Clearwire Seller or any for periods ending on the Closing Date, with respect to the Business, Acquired Assets, activities, income or operations of its Subsidiaries have been timely filed, and all those Seller. All Tax Returns and reports with respect to Taxes filed by Seller are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been . Seller has timely paid, or made provision in the Seller Interim Balance Sheet for all Taxes for periods ending on the Closing Date related to the Acquired Assets, Business, income and operations of Seller that have or may have accrued or become due for all periods covered by the Tax Returns, or pursuant to any assessment received by Seller, except for those Taxes such Taxes, if any, as are listed in Schedule 6.17(a) and are being contested in good faith and for as to which adequate reserves (determined in accordance with GAAP) have been established provided in Clearwire’s Financial Statementsthe Seller Interim Balance Sheet. Except Seller currently is not the beneficiary of any extension of time within which to file any Tax Return related to the Business or Acquired Assets.
(b) Seller has delivered or made available to Buyer copies of all Tax Returns related to the Business or Acquired Assets filed since January 1, 2010. Schedule 6.17(b) sets forth each state, county, local municipal, domestic or foreign jurisdiction or Governmental Authority in or with which, with respect to the Business or Acquired Assets, Seller (i) files, or is or has been required to file January 1, 2010, a Tax Return, (ii) is required to register for any Tax purpose, (iii) is or has been liable for any Tax on a “nexus” basis at any time, (iv) is qualified to do business, (v) owns or regularly uses property, (vi) has any employee or in which any employee is regularly present, or (vii) has any agent, representative or distributor.
(c) No claim has ever been made or is expected to be made by any Governmental Authority in a jurisdiction where Seller does not file Tax Returns that Seller is or may be subject to taxation by that jurisdiction. Schedule 6.17(c) contains a complete list of all audits, examinations and investigations with respect to Taxes or Tax Returns of Seller or related to the Business or Assets that may arise solely have been audited or currently are under audit and a complete description of any and all deficiencies or other amounts that were paid or are currently being contested. All such deficiencies or other amounts proposed as a result of actions such audits have been paid, reserved against, or transactions following settled without further liability (or are being contested in good faith by appropriate proceedings as described in Schedule 6.17(c)). There is no dispute or claim concerning any Taxes related to the Execution Date permitted Business or Assets either (i) claimed or raised by this Agreement, neither Clearwire nor any Governmental Authority in writing or (ii) as to which Seller has Knowledge. Seller has not given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the assessment or payment of Taxes with respect to the Business or Acquired Assets. There is no Encumbrance on any of its Subsidiaries the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Tax, and Seller has incurred no Knowledge of any liability (whether or not due) basis for material assertion of any claims attributable to Taxes since the date of the most recent balance sheet included which, if adversely determined, would result in the Clearwire Financial Statements other than in the ordinary course of businessany such Encumbrance.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries Seller (i) is has not been a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any member of an Affiliated Group filing a consolidated federal income Tax indemnity or Tax sharing agreement with any person, or Return and (ii) has entered into does not have any waivers Liability for the Taxes of any Person under Treasury Regulation §1.1502-6 or extensions of the statute of limitations with respect to material Taxessimilar Law, as a transferee or successor, by Contract, or otherwise.
(e) Clearwire has no Knowledge No power of any proposed or threatened Tax claims or assessments attorney with respect to Clearwire Taxes has been executed by Seller or filed with any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected Governmental Authority with respect to have a Clearwire Material Adverse EffectSeller.
(f) Except as disclosed Seller has complied in Section 6.7(f) all material respects with all provisions of Tax Law relating to withholding, payment and remittance of Taxes and information reporting with respect thereto, and Seller has, within the Clearwire Disclosure Scheduletime and in the manner prescribed by Tax Law, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing proper Governmental Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesamounts required.
(g) Neither Clearwire nor There is no Tax ruling, request for ruling or settlement, compromise, closing or Tax collection agreement in effect or pending which does or could affect the Liability of Seller or Buyer for Taxes with respect to the Acquired Assets or Business for any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction period after the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyClosing Date.
(h) Except as set forth in Section 6.7(h) No provisions of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) any Assumed Contracts are properly treated as a partnership or (y) disregarded for United States federal income tax purposes as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLCa partnership) other than or as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Indebtedness.
(i) Except as set forth in No Acquired Asset is (i) “tax exempt use property” within the meaning of Section 6.7(i168(h)(1) of the Clearwire Disclosure ScheduleCode or Section 470(c)(2) of the Code, (ii) tax-exempt bond financed property within the Merger and other transactions contemplated by Articles 2meaning of Section 168(g) of the Code, 3 and 4 of this Agreement will not result in the recognition by NewCo or (iii) subject to a lease under Code Section 7701(h) or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)predecessor provision.
(j) Seller has never been a party to a “reportable transaction,” as such term is defined in Treasury Regulations Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations 1.6011-4(b)(1). Seller has disclosed on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. its federal income Tax purposes following the Merger.
(k) Any liabilities Returns all positions taken therein that could give rise to a substantial understatement of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with Tax within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation meaning of Section 1.707-5(a)(6)(i)(D)6662 of the Code.
Appears in 1 contract
Tax. (a) None To the extent relating to the Acquired Assets or Assumed Liabilities, (i) since January 1, 2014, Seller has (A) timely filed (or caused to be timely filed) (after taking into account any extension of the assets of Clearwire or any of its Subsidiaries is subject time within which to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bfile) All material all Tax Returns required to be filed by Clearwire it; and (B) timely paid (or any of has caused to be timely paid on its Subsidiaries have been timely filed, and behalf) all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown or required to be shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or ); (ii) has entered into any waivers or extensions of Seller currently is not the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge beneficiary of any proposed or threatened extension of time within which to file any Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatReturn; (iii) since January 1, if upheld2014, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have Seller has withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amount paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders stockholder or other third parties.
party, and all IRS Forms W-2 and 1099 required with respect thereto have been properly completed in all material respects and timely filed; (giv) Neither Clearwire nor no deficiencies for any material amount of Taxes have been proposed, asserted or assessed against Seller as of the date hereof; and (v) there are no Encumbrances (other than Permitted Encumbrances) on any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, the Acquired Assets that arose in connection with any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder failure (or alleged failure) to pay any comparable provision under state or local income Tax law) or, and to the Knowledge of ClearwireSeller there is no basis for assertion of any claims attributable to Taxes which, if adversely determined, would result in any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)such Encumbrance.
(jb) Section 6.7(jTo the extent relating to the Acquired Assets or Assumed Liabilities, (i) no examination or audit of any material Tax Return of Seller or any administrative or judicial proceeding in respect of any material amount of Tax is currently pending or threatened in writing; (ii) since January 1, 2014, no claim has been made, and to the Clearwire Disclosure sets forthKnowledge of Seller no claim is expected to be made, by any Governmental Authority in all material respects, the information a jurisdiction where Seller does not file Tax Returns that Seller is or may be subject to taxation by that jurisdiction; and (iii) there is no current dispute or claim concerning any limitations on the ability of NewCo Taxes either (A) claimed or raised by any Governmental Authority in writing or (B) as to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerwhich Seller has Knowledge.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(dset forth on Schedule 4.1(l) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldwould not, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
Effect on the Wachovia Contributed Subsidiaries, (fi) Except as disclosed the Wachovia Contributed Subsidiaries and the other Subsidiaries of Wachovia with respect to the Wachovia Contributed Business have timely filed (or Wachovia has timely filed on their behalf) with the appropriate taxing authorities all Tax Returns required to be filed by or with respect to the Wachovia Contributed Business, (ii) the Wachovia Contributed Subsidiaries and the other Subsidiaries of Wachovia with respect to the Wachovia Contributed Business have paid in Section 6.7(ffull (or Wachovia has paid in full on their behalf) all Taxes due by or in respect of the Clearwire Disclosure ScheduleWachovia Contributed Business for all periods, Clearwire (iii) each Wachovia Contributed Subsidiary and each other Subsidiary of its Subsidiaries have withheld and paid over Wachovia with respect to the relevant Taxing Authorities Wachovia Contributed Business has duly and timely withheld all Taxes required to have been be withheld and paid in connection with payments its business or assets, and such withheld Taxes have been either duly and timely paid to employeesthe proper Governmental Authorities or properly set aside in accounts for such purpose, independent contractors, creditors, shareholders (iv) there are no material outstanding adjustments for Tax purposes applicable to any Wachovia Contributed Subsidiary or other third parties.
Subsidiary of Wachovia with respect to the Wachovia Contributed Business and required as a result of changes in methods of accounting effected on or before the Closing Date, which adjustments will remain in force or by which any Wachovia Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (gv) Neither Clearwire nor no material elections for Tax purposes have been made by any Wachovia Contributed Subsidiary or other Subsidiary of Wachovia with respect to the Wachovia Contributed Business that will remain in force or by which any Wachovia Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (vi) no Wachovia Contributed Subsidiary is a party to or bound by or has any rights or obligations under any Tax allocation, sharing, indemnity or similar agreement or arrangement that will remain in effect after the Closing Date, and (vii) no Wachovia Contributed Subsidiary is or has been a member of any group of companies filing a consolidated, combined or unitary Tax Return for any Tax period for which the statute of limitations for the assessment or collection of any Tax remains open, other than a group of which Wachovia or one of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction at all times been the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltycommon parent.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Retail Brokerage Company Formation Agreement (Prudential Financial Inc)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, an Ironman Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Ironman and the Ironman Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Ironman and the Ironman Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Ironman or any of the Ironman Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Ironman or any of the Ironman Subsidiaries in respect of any Tax or Tax asset and neither Ironman nor any of its the Ironman Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Ironman or the Ironman Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Ironman or indirectlyany of the Ironman Subsidiaries.
(vii) in, Neither Ironman nor any Ironman Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Ironman nor any Ironman Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Ironman nor any Ironman Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Ironman or any Ironman Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Ironman or any Ironman Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Ironman or any Ironman Subsidiary does not file a Tax Return that Ironman or such Ironman Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Ironman nor any Ironman Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Ironman or other Ironman Subsidiaries).
(xii) Ironman is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.17(a)(xii) of the Ironman Disclosure Schedule sets forth all elections made by Clearwire Ironman or any of its Affiliates Ironman Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Ironman nor any of the Ironman Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Ironman SEC Documents reflect an adequate reserve for all Taxes payable by Xxxxxxx and the Ironman Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Ironman and each Ironman Subsidiary is a Tax resident only in its jurisdiction of formation. Ironman and each Ironman Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Ironman’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Ironman, no more than 25% of the total number of all issued and outstanding shares of Ironman, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Ironman Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Ironman Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code. Each non-U.S. Ironman Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Ironman nor any Ironman Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code and or (iii) a “surrogate foreign corporation” within the Regulations thereunder meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Ironman Common Stock (i) were issued by Ironman (or any comparable provision under state current or local income Tax lawformer Ironman Affiliate) or, to with an exercise price that was less than the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) fair value of the Clearwire Disclosure sets forthunderlying Ironman Common Stock (or Subsidiary shares) for which the options or warrants were exercisable at the time such options or warrants were issued, in all material respects(ii) are, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireor have ever been, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (Stratasys Ltd.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All federal and state Tax Returns and all other material Tax Returns that were or are required to be filed on or before the Closing Date by Clearwire Parent or any of its Subsidiaries have been or will be timely filedfiled on or before the Closing Date, and all those such Tax Returns are or will be true, correct and complete in all material respects.
respects and were or will be prepared in substantial compliance with all Applicable Laws; (cii) All material all Taxes owed due and owing by Clearwire and Parent or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to Parent's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by Parent to Parent and adequately reserved for in Parent Financial Statements. Neither Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to Parent or any of its Subsidiaries. Neither Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where Parent or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against Parent or any of its Subsidiaries. Section 4.14(b) of the Parent Disclosure Letter lists all Tax Returns filed by Parent and its Subsidiaries for taxable periods ended on or after March 31, 2012, indicates those Tax Returns that have been paidaudited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by Parent and each of its Subsidiaries for taxable periods ended on or after March 31, except 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by Parent or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on Parent’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for those Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in Clearwire’s accordance with GAAP in the Parent Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire .
(d) Neither Parent nor any of its Subsidiaries has incurred waived any liability (whether statute of limitations in respect of income Taxes or not due) for material Taxes since the date agreed to any extension of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding time with respect to Taxes of Clearwire an income Tax assessment or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesdeficiency.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Parent and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesThird Party.
(f) Except as listed on Section 4.14(f) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was Parent); or (B) has any liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.14(f) of the Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 4.14(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Parent or any Subsidiary is a party and that is treated as a partnership for federal income Tax purposes.
(h) Neither Clearwire Parent nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where Parent or any Subsidiary does not file Tax Returns that Parent (or such Subsidiary) is or may be subject to taxation by that jurisdiction nor is there any factual or legal basis for any such claim.
(j) Neither Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither Parent nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an international boycott within the meaning of Section 999 of the Code.
(m) Neither Parent nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either Parent or any Subsidiary, and, except as listed on Section 4.14(n) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has entered into, obtained a private letter ruling or otherwise participated closing agreements from the IRS (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion comparable ruling from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hTaxing Authority).
(io) Except Neither Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as set forth defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 6.7(i) 542 of the Clearwire Disclosure ScheduleCode; or (C) a “passive foreign investment company” nor has Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Merger Code.
(p) Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by Articles 2, 3 and 4 of this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 4.14(q) of the Parent Disclosure Letter, there is no agreement, contract or arrangement to which Parent or any Subsidiary is a party that would, individually or collectively, result in the recognition payment of any amount that would not be deductible by NewCo reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither Parent nor any Subsidiary has been, nor will any of its Subsidiaries them be, required to include any item of income in, or gain under exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 1502 481 of the Code and the Regulations thereunder (or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(js) Section 6.7(j) of the Clearwire Disclosure sets forth, Parent and its Subsidiaries have complied in all material respectsrespects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, Parent and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the information concerning any limitations on extent required by Law, remit such unclaimed property to the ability of NewCo applicable Governmental Entity. Parent’s and each Subsidiary’s records are adequate to utilize permit a Governmental Entity or other outside auditor to confirm the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerforegoing representations.
(kt) Any liabilities All transactions for taxable years for which the statute of Clearwirelimitations is still open (including but not limited to sales of goods, with loans, and provision of services) between (i) Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by Parent (within the possible exception meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any indebtedness issued by Clearwire reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date face of Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with Sections 10.1(b)(iv)(Fthe past custom and practice of Parent and each Subsidiary in filing its Tax Returns. Since the filing of Parent Financial Statements, neither Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) Parent operates at least one significant historic business line, or 10.1(b)(iv)(H) owns at least a significant portion of this Agreementits historic business assets, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with each case within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in meaning of Treasury Regulation Regulations Section 1.7071.368-5(a)(6)(i)(D1(d).
(w) Parent has provided or otherwise made available to Parent all of Parent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of Parent or its Subsidiaries that have been received since December 31, 2011.
Appears in 1 contract
Tax. Except as set forth in Schedule 2.11:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material all Material Tax Returns required to be filed by Clearwire or any of its Subsidiaries Iroquois have been or will be timely filed, and filed with the appropriate taxing authorities in all those jurisdictions in which such Tax Returns are required to be filed;
(b) such Tax Returns are or will be true, correct and complete in all material Material respects., and all Taxes reported on such Tax Returns and all Taxes owed by Iroquois or for which Iroquois may be liable have been or will be timely paid;
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether Iroquois has not extended or not shown on waived the application of any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result statute of actions limitations of any jurisdiction regarding the assessment or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor collection of any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.Tax;
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedulethere are no Material audits, there is no currently pending audit claims, assessments, levies, administrative proceedings, or administrative lawsuits pending, or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound threatened against Iroquois by any material closing agreement, offer in compromise, gain recognition agreement or taxing authority and Iroquois has not received any other agreement with written notices from any Taxing Authority or taxing authority relating to any issue which could have a Material effect on the Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions liability of Iroquois after the statute of limitations with respect to material Taxes.Closing Date;
(e) Clearwire no claim has no Knowledge of ever been made by any proposed taxing authority in a jurisdiction where Iroquois does not file Tax Returns that it is or threatened Tax claims or assessments with respect may be subject to Clearwire or any of its Subsidiaries that, if upheld, would, individually or taxation in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.that jurisdiction;
(f) Except as disclosed in Section 6.7(fthere are no Liens for Taxes (other than Liens for current Taxes not yet due and payable) upon the assets of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.Iroquois;
(g) Neither Clearwire nor any none of its Subsidiaries has entered intothe assets of Iroquois, or otherwise participated (directly or indirectly, secures any debt the interest on which is tax exempt under Section 103(a) in, any “listed transaction”, or any reportable transaction of the principal purpose of which was tax avoidance, Code;
(h) neither Seller is a person other than a United States person within the meaning of Sections 6011, 6111 or 6112 of the Code and the transactions contemplated herein are not subject to the tax withholding provisions of the Code;
(i) all Material Taxes which Iroquois is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld or collected, and have been or will be timely paid over to the proper authorities to the extent due and payable;
(j) there are no Tax sharing, allocation, indemnification or similar agreements in effect as between Iroquois, on the one hand, and any other party (including either Seller or such Seller's Affiliates and any predecessors thereof), on the other hand, under which Buyer or Iroquois could be liable for any Taxes of any such party for any periods or portions thereof after the Closing Date;
(k) Iroquois does not have any liability for the Taxes of any Person under Treasury Regulations thereunder Section 1.1502-6 (or has received any corresponding provisions of state, local or foreign Tax law), or as a written opinion from a tax advisor that was intended to provide protection against a tax penalty.transferee or successor, by contract or otherwise;
(hl) Except as set forth in Iroquois has not applied for, nor been granted, nor agreed to any accounting method change for which it will be required to take into account any adjustment under Section 6.7(h) 481 of the Clearwire Disclosure ScheduleCode or any similar provision of the Code or the corresponding tax laws of any nation, each Subsidiary state or locality;
(m) Iroquois has not entered into any agreement or arrangement with any taxing authority that requires it to take any action or to refrain from taking any action and
(n) Iroquois is not a party to any agreement with any taxing authority that would be terminated or adversely affected as a result of Clearwire is either the transactions contemplated by this Agreement;
(xo) treated Iroquois has not participated in any "reportable transaction" within the meaning of Treasury Regulations Section 1.6011‑4(b) (and all predecessor regulations); and
(p) Iroquois is, and has been since inception, properly classified as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action Iroquois has been taken by Clearwire or any of a valid Section 754 election in effect with respect to its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint taxable year that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and includes the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Date.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, filed by CE Compression and each Compression Subsidiary with the competent Tax Authority and/or Governmental Authority and all those such Tax Returns returns are true, correct and complete in any material respect pursuant to and in accordance with the applicable Laws.
(b) All Taxes which were due under the Tax returns referred to in the preceding paragraph (whether or not shown to be due on any such Tax returns) have been duly and timely paid, deducted or withheld, by CE Compression and each Compression Subsidiary, or adequate provisions have been created and accounted for in the relevant Compression Financials. All Taxes which are not yet due and payable but which relate to periods ending on or before the Closing have been fully and adequately provided for in all material respectsrespects in the books and records of CE Compression and each Compression Subsidiary.
(c) All material CE Compression and each Compression Subsidiary has deducted, withheld or collected all amounts required to be deducted, withheld or collected by it on account of Taxes owed including all amounts required to be deducted, withheld or collected in respect of amounts deemed to be paid by Clearwire it, and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following has remitted all such amounts to the Execution Date permitted appropriate Governmental Entity when required by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessLaw to do so.
(d) Except as disclosed in Section 6.7(d) There are no Encumbrances for Taxes upon the assets or properties of CE Compression or the Clearwire Disclosure ScheduleCompression Subsidiaries, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes other than Encumbrances created solely by operation of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesLaw.
(e) Clearwire has CE Compression and the Compression Subsidiaries have not been served with any written notice of assessment or other written notices concerning the payment of Taxes, and to the CE Knowledge there are no Knowledge of any proposed audits, examinations, investigations, claims, disputes or other proceedings pending or threatened Tax claims or assessments in writing with respect to Clearwire any Taxes or Tax returns of CE Compression or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectCompression Subsidiary.
(f) Except All the extraordinary transactions involving CE Compression and/or any Compression Subsidiary (including, without limitation, any acquisition or sale of interests and/or businesses as disclosed in Section 6.7(fa going concern) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld performed in compliance with Tax Laws and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesall the applicable Taxes have been duly and timely paid.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code CE Compression and the Treasury Regulations thereunder or has received a written opinion from a Compression Subsidiaries are and have been resident for tax advisor that was intended to provide protection against a tax penaltypurposes solely in their jurisdiction of incorporation and they do not have permanent establishment in other jurisdictions.
(h) Except as set forth There are no circumstances existing which could result in Section 6.7(h) the application of section 17, section 17.1, section 78, section 79, sections 80 to 80.04 of the Clearwire Disclosure ScheduleIncome Tax Act (Canada), each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its ownerany equivalent provision under applicable provincial law, for U.S. federal income tax purposes. No action has been taken by Clearwire to CE Compression or any of its Affiliates to treat NewCo LLC subsidiaries. Neither CE Compression nor any of its subsidiaries has claimed nor will claim any reserve under any provision of the Income Tax Act (Canada) or any equivalent provincial provision, if any amount could be included in the income of CE Compression or such subsidiary for any period ending after the Closing unless such reserve has been properly reflected in its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) books and this Section 6.7(h)records.
(i) Except Any transaction between the Compression Group Companies or between any CE Group Companies and the Compression Group Companies or between the Compression Group Companies and their Related Persons have been priced at arm’s length for transfer pricing purposes. None of the Compression Group Companies nor any of its subsidiaries has acquired property or services from, or disposed of property or provided services to, a person with whom it does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) for an amount that is other than the fair market value of such property or services, nor has any Compression Group Companies been deemed to have done so for purposes of the Income Tax Act (Canada). For all transactions between the Compression Group Companies, on the one hand, and any non-resident person with whom a Compression Group Company, as set forth in Section 6.7(iapplicable, was not dealing at arm’s length for the purposes of the Income Tax Act (Canada), on the other hand, the CE Compression Group Company, as applicable, has made or obtained records or documents that satisfy the requirements of paragraphs 247(4)(a) to (c) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Act.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. 17.1 All liabilities, whether actual, deferred, contingent or disputed, of each Relevant Company and each Turkcell Group Company for Tax measured by reference to income, profits or gains earned, accrued or received on or before the Accounting Date or arising in respect of an event occurring or deemed to occur on or before the Accounting Date are fully provided for in the Accounts. No Relief taken into account in computing or eliminating any provision for deferred tax in the Accounts has been or could be prejudiced by any event occurring or occurred after the Accounting Date.
17.2 Since the Accounting Date:
(aA) None no Relevant Company and no Turkcell Group Company has been involved in any transaction which has given or may give rise to a liability to Tax on any Relevant Company or any Turkcell Group Company (ignoring for these purposes the availability of any Relief) other than Tax in respect of normal trading income or receipts of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed relevant company concerned arising from transactions entered into by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than it in the ordinary course of business; and
(B) no disposal or other event has taken place which has or may have the effect crystallising a liability to Tax which, if such disposal or event had been planned or predicted at the Accounting Date, should have been reflected in the provision for deferred tax contained in the Accounts.
(d) Except as disclosed 17.3 Each Relevant Company and each Turkcell Group Company has duly, and within any appropriate time limits, paid all Tax due, made all returns, given all notices, and supplied all other information required to be supplied to all relevant tax authorities; all such information was and remains complete and accurate in Section 6.7(d) all material respects and all such returns and notices were and remain compete and accurate in all material respects and were made on the proper basis and do not, and are not likely to, reveal any transactions which may be the subject to any dispute with any tax authority.
17.4 No Relevant Company and no Turkcell Group Company is involved in any current dispute with any Tax authority or has in the last 6 years been the subject of the Clearwire Disclosure Scheduleany investigation, audit or non-routine visit by any Tax authority, and there is no currently pending planned investigation, audit or administrative non-routine visit to the knowledge of the officers of the Relevant Companies. There are no circumstances under which any Relevant Company or judicial proceeding with respect any officer of any Relevant Company (in that capacity) or any Turkcell Group Company or any officer of any Turkcell Group Company (in that capacity) could become liable to Taxes pay any interest, fine or penalty to any Tax authority.
17.5 No action, omission or practice of Clearwire any Relevant Company or any Turkcell Group Company is or has been in material breach of any Tax law and all transactions between persons associated for the purposes of any transfer pricing or their capitalisation provisions are and have been conducted on arms length terms so are not subject to adjustment for transfer pricing purposes in any jurisdiction.
17.6 No Relevant Company and no Turkcell Group Company has a liability to Tax which is properly payable by either of the Cukurova Parties or any of its Subsidiaries. Except as disclosed in Section 6.7(dtheir respective Affiliates (other than a Relevant Company or Turkcell Group Company) and which has fallen to be paid by a Relevant Company or Turkcell Group Company due to the failure of either of the Clearwire Disclosure ScheduleCukurova Parties or their respective Affiliates aforesaid to pay that Tax when due and no such liability to Tax on the part of Alfa, neither Clearwire nor any of its Subsidiaries (i) is the Company, a party to Relevant Company or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions Turkcell Group Company will arise if either of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire Cukurova Parties or any of its Subsidiaries that, if upheld, would, individually their respective Affiliates aforesaid or in the aggregate, reasonably be expected associates fails to have a Clearwire Material Adverse Effectpay any liability to Tax when due.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Subscription Agreement (Turkcell Iletisim Hizmetleri a S)
Tax. Except as disclosed in Schedule 5.7:
(a) None of with respect to the assets of Clearwire or any of its Subsidiaries is subject to any Assets:
(i) all material Encumbrance for Taxes, except for liens for Asset Taxes not yet that have become due and payable., taking into account any validly granted extensions, have been timely paid in full, when required to be paid;
(bii) All all material Tax Returns with respect to the Asset Taxes, which are required to be filed by Clearwire or any of its Subsidiaries filed, have been duly and timely filed, and all those such Tax Returns are true, correct and complete in all material respects.;
(ciii) All material there are no Encumbrances for Taxes owed (including any interest, fine, penalty, or additions to Tax imposed by Clearwire and its Subsidiaries a Governmental Authority in connection with such Taxes) on the Assets, other than Permitted Encumbrances;
(whether iv) no Seller has received any written notice of any pending claim (which remains outstanding) from any Governmental Authority for assessment of Asset Taxes, and, to Sellers’ Knowledge, no such claim has been made or threatened;
(v) to Sellers’ Knowledge, no claim has ever been made by a Governmental Authority in a jurisdiction where any Seller does not shown on any file Tax Returns (or a particular type of Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions relating to the ownership or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date operation of the most recent balance sheet included Assets that such Seller is or may be subject to taxation in the Clearwire Financial Statements other than in the ordinary course that jurisdiction or required to file a particular type of business.Tax Return;
(dvi) Except as disclosed in Section 6.7(dno examination, audit, claim, assessment, deficiency, or other legal proceeding has been commenced or is pending with regard to any Asset Taxes; and
(vii) none of the Clearwire Disclosure Schedule, there is no currently pending audit Assets are subject to a tax partnership agreement or administrative or judicial proceeding are otherwise treated as held in an arrangement requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code; and
(b) with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed EBC, YLHC, YELP and YPLC, but, with respect to YELP and YPLC, in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries each case expressly limited to Seller’s Knowledge:
(i) all material Taxes that have become due and payable, taking into account any validly granted extensions, have been timely paid in full, when required to be paid;
(ii) all material Tax Returns with respect to Taxes, which are required to be filed, have been duly and timely filed, and all such Tax Returns are correct and complete in all material respects;
(iii) all Tax withholding and deposit requirements imposed on or with respect to EBC, YLHC, YELP and YPLC have been satisfied in full in all respects;
(iv) there are no Encumbrances for Taxes (including any interest, fine, penalty, or additions to Tax imposed by a Governmental Authority in connection with such Taxes) on any of the Equity Interests or property or other assets of EBC, YLHC, YELP or YPLC, other than Permitted Encumbrances;
(v) none of Sellers, EBC YLHC, YELP or YPLC has received any written notice of any pending claim (that remains outstanding) from any Governmental Authority for assessment of Taxes on EBC, YLHC, YELP or YPLC, and, to Sellers’ Knowledge, no such claim has been made or threatened;
(vi) no claim has ever been made by a Governmental Authority in a jurisdiction where EBC,YLHC, YELP or YPLC do not file Tax Returns (or a particular type of Tax Return) that any of them is or may be subject to taxation in that jurisdiction or required to file a particular type of Tax Return;
(vii) no examination, audit, claim, assessment, deficiency, or other legal proceeding has been commenced or is pending against EBC,YLHC, YELP or YPLC with regard to any Taxes;
(viii) none of EBC, YLHC, YELP or YPLC are a party to or bound by any material closing agreementTax allocation, offer in compromisesharing or indemnity agreements or arrangements (excluding, gain recognition agreement for the avoidance of doubt, any commercial agreements or any contracts that are not primarily related to Taxes). None of EBC,YLHC, YELP or YPLC (i) has ever been a member of a Consolidated Group (other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, than a Consolidated Group of which EMC is the common parent (the “Seller Consolidated Group”)) or (ii) has entered into any waivers or extensions liability for the Taxes of any Person (other than the members of the statute Seller Consolidated Group) under Treasury Regulation Section 1.1502-6 (or any corresponding provisions of limitations with respect to material Taxes.state, local or foreign Tax law), or as a transferee or successor, or by contract or otherwise;
(eix) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld EBC, YLHC and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire YPLC is either (x) treated taxable as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action , and YELP is treated as a partnership for U.S. federal income tax purposes;
(x) none of EBC,YLHC, YELP or YPLC has been taken ever 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 (i) in the two years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by Clearwire this Agreement;
(xi) none of EBC, YLHC, YELP or YPLC has engaged in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2);
(xii) none of EBC, YLHC, YELP or YPLC 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) beginning on or after the Closing Date as a result of: (i) an adjustment under either Section 481(a) or Section 482 of the Code (or any corresponding or similar provision of its Affiliates state, local or non-U.S. Tax law) by reason of a change in method of accounting or otherwise on or prior to treat NewCo LLC the Closing Date for a taxable period ending on or its Subsidiaries prior to the Closing Date; (including Clearwire Sub LLCii) other than as a “closing agreement” described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) 7121 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code (or any corresponding or similar provision of its Subsidiaries of income state, local or gain non-U.S. Tax law) executed on or prior to the Closing Date; (iii) an intercompany transaction or any excess loss account described in Treasury Regulation under Section 1502 of the Code and the Regulations thereunder (or any comparable corresponding or similar provision under state of state, local or local income foreign Tax law) or, entered into or created on or prior to the Knowledge Closing Date; (iv) an installment sale or open transaction disposition made on or prior to the Closing Date; (v) the cash method of Clearwireaccounting or long-term contract method of accounting utilized prior to the Closing Date; or (vi) a prepaid amount received on or prior to the Closing Date;
(xiii) none of EBC, YLHC or YPLC has made any payments, is a party to, or has any liability with respect to, any other material items agreement, contract, arrangement, or plan that could result, separately or in the aggregate, in the actual or deemed payment by either of income or Tax any “excess parachute payment” within the meaning of Section 280G of the Code (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any corresponding provision of its Subsidiaries (including any income state, local or gain of Subsidiaries of Sprint foreign Applicable Law relating to Taxes), or any amount that become Subsidiaries of NewCo in the LLC Contribution).
(j) will not be fully deductible pursuant to Section 6.7(j162(m) of the Clearwire Disclosure sets forthCode (or any corresponding or similar provision of any state, local, or foreign Applicable Law relating to Taxes);
(xiv) no assets of EBC, YLHC, YELP or YPLC are required to be treated as owned by another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in all material respectseffect immediately before the enactment of the Tax Reform Act of 1986, or are “tax-exempt use property” within the information concerning meaning of Section 168(h)(1) of the Code;
(xv) none of EBC, YLHC, YELP or YPLC (A) has agreed to make, or is required to make, or will as a result of the transactions contemplated in this Agreement be required to make, adjustments under Section 481 of the Code, (B) has made any limitations on election under Section 341(f) (prior to the ability repeal thereof) of NewCo the Code (or any corresponding or similar provision of state, local or foreign Law relating to utilize Taxes), or (C) has undergone an ownership change for purposes of Section 382 of the net operating losses Code (or any corresponding or similar provision of Clearwire state, local or foreign Law relating to Taxes);
(xvi) none of EBC, YLHC, YELP or YPLC has made or rescinded any election relating to Taxes, or, except as may be required by Applicable Law, made any change to any method of reporting income or deductions for U.S. federal income Tax purposes following from those employed in the Merger.preparation of the Tax Returns most recently filed by or on behalf of it; and
(kxvii) Any liabilities all transactions between and among EBC, YLHC, YELP, YPLC and their respective Affiliates have been conducted at arm’s-length within the meaning of ClearwireSection 482 of the Code (or any corresponding or similar provision of state, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) local or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes foreign Applicable Law relating to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(DTaxes).
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Par Pacific Holdings, Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material Tax Returns returns required to be filed by Clearwire by, on behalf of or any of with respect to, the Company and its Subsidiaries have been duly and timely filed, filed and all those Tax Returns are true, complete and correct and complete in accordance with the applicable Laws in all material respects.
(cii) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown reflected on such Tax returns) required to be paid by the Company and its Subsidiaries have been duly and timely paid in accordance with the applicable Laws.
(iii) All Taxes required to be withheld by the Company and its Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such purpose in accordance with the applicable Laws.
(iv) The Company and each Subsidiary has paid or accrued as a liability in the Consolidated Financial Statements all Taxes of or required to be paid by it for all taxable periods (or portions thereof) ending before the Closing Date. Since December 31, 2017, except in the ordinary course of business and (other than to the extent there is no past practice with respect to any such transaction or arrangement) as is consistent with past practice, neither the Company nor any Subsidiary has (a) engaged in any transaction that could reasonably be expected to result in any Tax Return) have been paid, except for those Taxes being contested in good faith and liability for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions the Company or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability Subsidiary would be liable (whether by reason of any withholding obligation, reduction in any Tax attribute or not dueotherwise), (b) for material Taxes since entered into any intercompany loan or intercompany debt arrangement or (c) increased or decreased the balances of any intercompany loan or intercompany debt arrangement. Since the date of the most recent balance sheet included audited Consolidated Financial Statements, the Company has not made, changed or revoked any Tax election, changed any Tax accounting method or Tax accounting period, filed any amended Tax return, filed any Tax return in a manner not consistent with past practice, settled, surrendered or compromised any Tax Claim, or surrendered any right to claim a Tax refund. All information set forth in the Clearwire audited Consolidated Financial Statements other than in (including the ordinary course of businessnotes thereto) relating to Tax matters is correct and complete.
(dv) Except as disclosed in Section 6.7(d) There are no Taxes for any period of any of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire Sellers or any of their respective Affiliates (other than the Group Companies) or direct or indirect owners for which the Company or its SubsidiariesSubsidiaries are or could be liable. Except as disclosed AV does not own any assets or rights transferred pursuant to the AV Assignment within a business activity (codice attività) registered for value-added tax purposes.
(vi) No Subsidiary has (a) agreed to waive or extend the statute of limitations applicable to the assessment or collection of any Tax that has not yet been either paid or resolved in Section 6.7(dfull or (b) agreed in writing to extend the time within which to file any Tax return of, related to, or that includes the Company or any Subsidiary, which has not been since filed within the prescribed extended period.
(vii) No claim has been made by any Governmental Authority in a jurisdiction where the Company or any Subsidiary has not filed a Tax return that it is or may be subject to Tax by such jurisdiction. The Company and its Subsidiaries have complied with all applicable rules regarding transfer pricing, including the execution and maintenance of documentation required to substantiate transfer pricing practices. The transactions contemplated by Paragraph 6.7 (Termination of Intercompany Agreements) and the AV Assignment will not result in any material Tax of the Clearwire Disclosure ScheduleCompany or any Subsidiary. For tax purposes, neither Clearwire all Terminating Intercompany Agreements were entered into and performed on arm’s-length terms and for fair market value.
(viii) Neither the Company nor any of its Subsidiaries Subsidiary (ia) is a party to or is bound by or obligated under any material closing agreementTax sharing, offer in compromiseallocation, gain recognition indemnity or similar agreement or any other agreement arrangement with any Taxing Authority or Person (other than any Tax indemnity sharing, allocation, indemnification or Tax sharing agreement with any person, gross-up provisions contained in ordinary course agreements or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or arrangements disclosed in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction VDR the principal purpose of which does not relate to Taxes), (b) is or ever was tax avoidancea member of any affiliated, within the meaning of Sections 6011consolidated, 6111 combined, unitary or 6112 other group for Tax purposes (other than a group, identified on Section 11.18 of the Code and Sellers Disclosure Letter, of which Green is the Treasury Regulations thereunder common parent), (c) has any liability for Taxes of any Person (or in connection with previously being, or ceasing to be, a member of any affiliated, consolidated, combined, unitary or other group for Tax purposes), as transferee, successor or otherwise, (d) is or has received been subject to any Tax in any jurisdiction other than its place of incorporation by virtue of having a permanent establishment or other place of business or taxable presence in that jurisdiction or (e) is subject to any closing agreement (or any other final and conclusive agreement), private letter ruling or other written opinion agreement, in each case, with or from a tax advisor that was intended to provide protection against a tax penaltyGovernmental Authority regarding Taxes or Tax matters.
(hix) Except Neither in the current taxable year nor in the preceding five (5) taxable years has the Company or any Subsidiaries claimed, utilized or requested exemptions, reliefs or other facilities in relation to Tax that could result in a claw back, recapture or annulment, including exemptions, reliefs or facilities for Tax relating to reorganizations or mergers. Neither the Company nor any Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period, or otherwise incur any Tax liability, as set forth in Section 6.7(h) a result of the Clearwire Disclosure ScheduleGreen Carve Out. Neither the Company nor any Subsidiary will be required to include any item of income in, each Subsidiary or exclude any item of Clearwire is either deduction from, taxable income for any taxable period (xor portion thereof) treated beginning after the Closing Date as a partnership result of (a) any change in method of accounting for a taxable period (or portion thereof) ending on or before the Closing Date, or (yb) disregarded as an entity separate from its owner, for any action taken or transaction entered into on or before the Closing Date. For U.S. federal income tax purposes. No action has been taken by Clearwire or any , the taxable year of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)each of the Group Companies is the calendar year.
(ix) Except as set forth No previous circumstances exist on the basis of which Tax Claims in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of relation to Company and/or its Subsidiaries of income can be validly founded or gain under Section 1502 of demands for payment can be validly made against the Code and the Regulations thereunder (Company and/or its Subsidiaries or any comparable provision under state or local income Tax law) or, proceedings can be commenced validly in relation to the Knowledge of Clearwire, same in any other material items of income relevant jurisdiction relating to any taxable event that occurred or Tax (“Clearwire Transaction Tax Items”). For originated prior to the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Closing.
(jxi) Section 6.7(j) No Tax Claims are pending against the Company and/or its Subsidiaries and no written notice of any such claim was received by the Company and/or its Subsidiaries as of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) date of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Stock Purchase Agreement (Michael Kors Holdings LTD)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required by Law to be filed by Clearwire or any of its Subsidiaries with respect to each Purchased Company and each Purchased Subsidiary have been duly and timely filedfiled (taking into account applicable extensions), and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All material Taxes owed required by Clearwire Law to be paid by each Purchased Company and its Subsidiaries (whether or not shown on any Tax Return) each Purchased Subsidiary have been duly and timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. .
(c) Except for Permitted Liens, there are no Liens for Taxes that may arise solely as result upon any of actions the property or transactions following assets of any Purchased Company or any Purchased Subsidiary.
(d) The Purchased Companies and the Execution Date permitted Purchased Subsidiaries have complied in all material respects with applicable Law with respect to Tax withholding (including Taxes and other amounts required to be withheld by any of them in respect of any amount paid or owing by it to or for the account or benefit of any Person, including any Employees, officers or directors and any non-resident Person).
(e) Each Purchased Company and Purchased Subsidiary has duly and timely collected all material amounts on account of any sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Authority any such amounts required by Law to be remitted by it.
(f) As of the date of this Agreement, neither Clearwire nor no audits, proceedings, investigations or other examinations of any material Tax Return of its Subsidiaries any Purchased Company or any Purchased Subsidiary that are material in nature are in progress, pending, or threatened in writing, and no notice of deficiency or proposed adjustment for any material amount of Tax has incurred been proposed, asserted, or assessed by any Governmental Authority against any Purchased Company or any Purchased Subsidiary, except any deficiency or adjustment that has been fully paid or otherwise resolved without any further liability to any Purchased Company or Purchased Subsidiary.
(whether g) There are no outstanding agreements, arrangements, waivers or not due) objections extending the statutory limitations period or providing for material Taxes since the date an extension of the most recent balance sheet included in the Clearwire Financial Statements time (other than pursuant to customary extensions to file Tax Returns obtained in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to the assessment or bound by reassessment or collection of Taxes of any material closing agreementof the Purchased Companies or Purchased Subsidiaries, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or (ii) the filing of any Tax indemnity Return of a Purchased Company or Tax sharing agreement with any personPurchased Subsidiary, or (iiiii) has entered into the payment or remittance of Taxes of any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed Purchased Companies or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyPurchased Subsidiaries.
(h) Except as set forth in Section 6.7(h) In respect of each period for which the Clearwire Disclosure Schedule, each Subsidiary applicable statute of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, limitations for U.S. federal income tax purposes. No action the assessment of Tax has been taken by Clearwire or any of its Affiliates not expired prior to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 date of this Agreement will not result in through the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) date of this Agreement, deemed none of the Purchased Companies or the Purchased Subsidiaries has received a written claim to pay Taxes or file Tax Returns from a Governmental Authority in a jurisdiction where such Purchased Company or such Purchased Subsidiary has not filed Tax Returns that has not been resolved, and none of the Purchased Companies or the Purchased Subsidiaries is resident for U.S. federal income tax Tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)a country other than its country of organization or incorporation.
Appears in 1 contract
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Sun Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Sun and the Sun Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Sun and the Sun Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Sun or any of the Sun Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Sun or any of the Sun Subsidiaries in respect of any Tax or Tax asset and neither Sun nor any of its the Sun Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of Sun or the Sun Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Sun or indirectlyany of the Sun Subsidiaries.
(vii) in, Neither Sun nor any Sun Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date Sun countersigns this Agreement, neither Sun nor any Sun Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Sun nor any Sun Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Sun or any Sun Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Sun or any Sun Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Sun or any Sun Subsidiary does not file a Tax Return that Sun or such Sun Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Sun nor any Sun Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Sun or other Sun Subsidiaries).
(xii) Sun is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 4.18(a)(xii) of the Sun Disclosure Schedule sets forth all elections made by Clearwire Sun or any of its Affiliates Sun Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except as set forth in Section 6.7(i) Each of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code Sun and the Regulations thereunder (or any comparable provision under state or local income Sun Subsidiaries is, and has been since formation, a Tax law) or, to the Knowledge resident only in is jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire incorporation for U.S. federal income Tax purposes following and is not and has not been treated as having a permanent establishment (within the Merger.
(k) Any liabilities meaning of Clearwirean applicable Tax treaty), with the possible exception branch or taxable presence in any jurisdiction other than its jurisdiction of any indebtedness issued by Clearwire between the Execution Date incorporation. Sun is, and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreementhas been since formation, deemed treated as a foreign corporation for U.S. federal income tax purposes.
(xiv) Neither Sun nor any of the Sun Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Sun SEC Documents publicly available prior to the date of this Agreement reflect an adequate reserve for all Taxes payable by Sun and the Sun Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(b) Neither Sun nor any Sun Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Sun Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code.
(c) Neither Sun nor any Sun Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be assumed treated as a Tax resident of any jurisdiction other than Israel following the Mergers.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Sun Ordinary Shares (i) were issued by NewCo LLC in connection Sun (or any current or former Sun Affiliate) with an exercise price that was less than the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” fair value of the underlying Sun Ordinary Shares (or any shares of any Sun Subsidiary) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, an Ironman Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Ironman and the Ironman Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Ironman and the Ironman Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Ironman or any of the Ironman Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Ironman or any of the Ironman Subsidiaries in respect of any Tax or Tax asset and neither Ironman nor any of its the Ironman Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Ironman or the Ironman Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Ironman or indirectlyany of the Ironman Subsidiaries.
(vii) in, Neither Ironman nor any Ironman Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Ironman nor any Ironman Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Ironman nor any Ironman Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Ironman or any Ironman Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Ironman or any Ironman Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Ironman or any Ironman Subsidiary does not file a Tax Return that Ironman or such Ironman Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Ironman nor any Ironman Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Ironman or other Ironman Subsidiaries).
(xii) Ironman is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.17(a)(xii) of the Ironman Disclosure Schedule sets forth all elections made by Clearwire Ironman or any of its Affiliates Ironman Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Ironman nor any of the Ironman Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Ironman SEC Documents reflect an adequate reserve for all Taxes payable by Ixxxxxx and the Ironman Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Ironman and each Ironman Subsidiary is a Tax resident only in its jurisdiction of formation. Ironman and each Ironman Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Ironman’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Ironman, no more than 25% of the total number of all issued and outstanding shares of Ironman, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Ironman Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Ironman Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code. Each non-U.S. Ironman Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Ironman nor any Ironman Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code and or (iii) a “surrogate foreign corporation” within the Regulations thereunder meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Ironman Common Stock (i) were issued by Ironman (or any comparable provision under state current or local income Tax lawformer Ironman Affiliate) or, to with an exercise price that was less than the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) fair value of the Clearwire Disclosure sets forthunderlying Ironman Common Stock (or Subsidiary shares) for which the options or warrants were exercisable at the time such options or warrants were issued, in all material respects(ii) are, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireor have ever been, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Tax. (a) None Each member of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Sulliden Group has duly and payable.
(b) All material timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Each member of the Sulliden Group has paid on a timely basis all Taxes owed which are due and payable, all assessments and reassessments, and all other Taxes due and payable by Clearwire and its Subsidiaries (whether them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Sulliden. Except Sulliden and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Sulliden for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Sulliden and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire any member of the Sulliden Group, and no member of the Sulliden Group is a party to any action or proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Sulliden, threatened against Sulliden or any of its Subsidiaries. Except as disclosed Subsidiaries or affiliates or any of their respective assets.
(d) No Claim has been made by any Governmental Entity in Section 6.7(da jurisdiction where Sulliden or any of its Subsidiaries or affiliates does not file Tax Returns that Sulliden or any of its Subsidiaries or affiliates is or may be subject to Tax by that jurisdiction.
(e) There are no Encumbrances (other than Permitted Encumbrances) with respect to Taxes upon any of the Clearwire Disclosure Scheduleassets of Sulliden or any of its Subsidiaries or affiliates.
(f) Sulliden and each of its Subsidiaries and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so. Sulliden has charged, neither Clearwire collected and remitted on a timely basis all sales, goods and services, value added and other commodity taxes as required under applicable legislation on any sale, supply or delivery made by them.
(g) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any Claim for, or the period for the collection or assessment or reassessment of Taxes due from Sulliden or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Sulliden and each of its Subsidiaries and affiliates has made available to Rio Alto true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Sulliden nor any of its Subsidiaries (i) is a party or affiliates has ever directly or indirectly transferred any property to or bound by supplied any material closing agreement, offer in compromise, gain recognition agreement services to or acquired any other agreement property or services from a Person with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or whom it was not dealing at arm’s length (ii) has entered into any waivers or extensions for the purposes of the statute Tax Act) for consideration other than consideration equal to the fair market value of limitations with respect to material Taxesthe property or services at the time of the transfer, supply or acquisition of the property or services.
(ej) Clearwire has There are no Knowledge circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any proposed equivalent provision under provincial or threatened Tax claims or assessments with respect foreign Law, to Clearwire Sulliden or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) affiliates. No member of the Clearwire Disclosure ScheduleSulliden Group has made, Clearwire and each of its Subsidiaries have withheld and paid over prepared and/or filed any elections, designations or similar filings relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or entered into any agreement or other third parties.
(g) Neither Clearwire nor any arrangement in respect of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income Taxes or Tax (“Clearwire Transaction Tax Items”). For Returns that has effect for any period ending after the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Each of Clearwire, with Sulliden and SpinCo is not a non-resident of Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date and Tax Act. Each of Sulliden’s Subsidiaries (other than SpinCo) is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(dset forth on Schedule 4.2(l) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldwould not, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
Effect on the Prudential Contributed Business, (fi) Except as disclosed the Prudential Contributed Subsidiaries and the other Subsidiaries of Prudential with respect to the Prudential Contributed Business have timely filed (or Prudential has timely filed on their behalf) with the appropriate taxing authorities all Tax Returns required to be filed by or with respect to the Prudential Contributed Business, (ii) the Prudential Contributed Subsidiaries and the other Subsidiaries of Prudential with respect to the Prudential Contributed Business have paid in Section 6.7(ffull (or Prudential has paid in full on their behalf) all Taxes due by or in respect of the Clearwire Disclosure SchedulePrudential Contributed Business for all periods, Clearwire (iii) each Prudential Contributed Subsidiary and each other Subsidiary of its Subsidiaries have withheld and paid over Prudential with respect to the relevant Taxing Authorities Prudential Contributed Business has duly and timely withheld all Taxes required to have been be withheld and paid in connection with payments its business or assets, and such withheld Taxes have been either duly and timely paid to employeesthe proper Governmental Authorities or properly set aside in accounts for such purpose, independent contractors, creditors, shareholders (iv) there are no material outstanding adjustments for Tax purposes applicable to any Prudential Contributed Subsidiary or other third parties.
Subsidiary of Prudential with respect to the Prudential Contributed Business and required as a result of changes in methods of accounting effected on or before the Closing Date, which adjustments will remain in force or by which any Prudential Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (gv) Neither Clearwire nor no material elections for Tax purposes have been made by any Prudential Contributed Subsidiary or other Subsidiary of Prudential with respect to the Prudential Contributed Business that will remain in force or by which any Prudential Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (vi) no Prudential Contributed Subsidiary is a party to or bound by or has any rights or obligations under any Tax allocation, sharing, indemnity or similar agreement or arrangement that will remain in effect after the Closing Date, and (vii) no Prudential Contributed Subsidiary is or has been a member of any group of companies filing a consolidated, combined or unitary Tax Return for any Tax period for which the statute of limitations for the assessment or collection of any Tax remains open, other than a group of which Prudential or one of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction at all times been the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltycommon parent.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Retail Brokerage Company Formation Agreement (Prudential Financial Inc)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Trident and the Trident Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Trident or any of the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in respect of any Tax or Tax asset and neither Trident nor any of its the Trident Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Trident or the Trident Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or indirectlyany of the Trident Subsidiaries.
(vii) in, Neither Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Trident or any Trident Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Trident or any Trident Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Trident nor any Trident Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Trident or other Trident Subsidiaries).
(xii) Trident is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Clearwire Trident or any of its Affiliates Trident Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the Regulations thereunder (meaning of an applicable Tax treaty), branch or taxable presence in any comparable provision under state or local income Tax law) or, to the Knowledge jurisdiction other than its jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)incorporation.
(jc) Section 6.7(j) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of the Clearwire Disclosure sets forthany fact or circumstance, in all material respects, the information concerning that could reasonably be expected to cause Sun to be treated as a Tax resident of any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes jurisdiction other than Israel following the Sun Merger.
(kd) Any liabilities None of Clearwire, the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the possible exception fair value of the underlying Trident Common Stock (or any shares of any indebtedness issued by Clearwire between Trident Subsidiary) for which the Execution Date and options or warrants were exercisable at the Closing in accordance with Sections 10.1(b)(iv)(Ftime such options or warrants were issued, (ii) are, or 10.1(b)(iv)(H) of this Agreementhave ever been, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due All income and payable.
(b) All other material Tax Returns required by Law to be filed by Clearwire or any of its Subsidiaries with respect to each Purchased Company and each Purchased Subsidiary have been timely filedfiled (taking into account applicable extensions), and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All income and other material Taxes owed required by Clearwire Law to be paid by each Purchased Company and its Subsidiaries each Purchased Subsidiary (whether or not shown on any Tax Return) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. .
(c) Except for Permitted Liens, there are no Liens for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor upon any of its Subsidiaries has incurred the property or assets of any liability (whether Purchased Company or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessPurchased Subsidiary.
(d) Except as disclosed The Purchased Companies and the Purchased Subsidiary have complied in Section 6.7(dall material respects with applicable Law with respect to Tax withholding and all information reporting and backup withholding requirements, including the maintenance of required records with respect thereto.
(e) No audits, proceedings or other examinations of any Tax Return of any Purchased Company or the Purchased Subsidiary are in progress, pending or, to the Knowledge of Sellers, threatened in writing. No deficiencies for Taxes of any Purchased Company or the Purchased Subsidiary have been claimed, proposed or assessed by any Governmental Authority, except for deficiencies that have been paid, settled or otherwise resolved.
(f) None of the Clearwire Disclosure Schedule, there is no currently pending audit Purchased Companies or administrative the Purchased Subsidiary has received a written claim to pay Taxes or judicial proceeding file Tax Returns from a Governmental Authority in a jurisdiction where such Purchased Company or such Purchased Subsidiary has not filed Tax Returns that has not been resolved. None of the Purchased Companies or the Purchased Subsidiary has (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of Clearwire any Taxes, which waiver or extension is still in effect, or (ii) executed or filed any power of attorney with any taxing authority, which is still in effect.
(g) None of the Purchased Companies or the Purchased Subsidiary is or has ever been a member of an affiliated group with which it has filed (or been required to file) consolidated, combined, unitary or similar Tax Returns, other than the Parent Group. None of the Purchased Companies or the Purchased Subsidiary (i) has any liability for the Tax of any Person (other than the Purchased Companies and the Purchased Subsidiary, or the Parent Group) under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of its Subsidiaries. Except federal, state, local or foreign Law), as disclosed a transferee or successor, pursuant to any contractual obligation, or otherwise pursuant to applicable Law, in Section 6.7(d) of the Clearwire Disclosure Scheduleeach case, neither Clearwire nor any of its Subsidiaries other than pursuant to customary commercial Contracts not primarily related to Taxes, or (iii) is a party to or bound by any material closing agreementTax sharing, offer in compromise, gain recognition indemnification or allocation agreement or other similar Contract, other than any other agreement with customary commercial Contracts not primarily related to Taxes.
(h) No Purchased Subsidiary will be required to include any Taxing Authority item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (i) any adjustments under Section 481 of the Code (or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax indemnity Law) made or requested prior to the Closing, (ii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax sharing agreement with Law) executed prior to the Closing, or (iii) installment sale or open transaction disposition made prior to the Closing.
(i) None of the Purchased Companies or the Purchased Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the prior two (2) years.
(j) None of the Purchased Companies or the Purchased Subsidiary (i) is a party to any personjoint venture, partnership, or other arrangement that is treated as a partnership for federal income Tax purposes or (ii) has entered into any waivers or extensions made an entity classification (“check-the-box”) election under Section 7701 of the statute of limitations with respect to material TaxesCode.
(ek) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) Each of the Clearwire Disclosure SchedulePurchased Companies is, Clearwire and each of at all times since its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employeesformation has been, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity disregarded as separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire owner for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireunder Treasury Regulations Section 301.7701-3. The Purchased Subsidiary is, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreementat all times since its formation has been, deemed treated as a C corporation for U.S. federal income tax Tax purposes.
(l) None of the Purchased Companies or the Purchased Subsidiary has engaged in a trade or business, had a permanent establishment or otherwise become resident for Tax purposes outside the United States.
(m) None of the Purchased Companies or the Purchased Subsidiary has been a party to be assumed by NewCo LLC in connection with any “listed transaction” within the transactions described in Articles 3 meaning of Section 6707A of the Code and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Regulations Section 1.7071.6011-5(a)(6)(i)(D4(b)(2) (or any corresponding or comparable state, local or non-U.S. Tax Law).
Appears in 1 contract
Samples: Equity Purchase Agreement (Casella Waste Systems Inc)
Tax. (a) None of Simultaneous with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxesdate hereof, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedGix Media shall prepare and, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested after coordinating in good faith with Viewbix Parent and Merger Sub, and its Israeli counsel, file with the ITA an application for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes a tax ruling (“Tax Ruling”) that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability will seek to determine that (whether or not duei) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes holders of Clearwire Gix Media Shares and/or Gix Media Warrants that are non-Israeli residents (as defined in the Israel Income Tax Ordinance [New Version], 1961 (the “Income Tax Ordinance”) or as will be determined by the ITA), (A) exempting Viewbix Parent, Merger Sub and their respective agents from any of its Subsidiaries. Except as disclosed in Section 6.7(d) of obligation to withhold Israeli tax from any consideration payable or otherwise deliverable pursuant to the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to Merger or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any personclarifying that no such obligation exists, or (B) instructing Viewbix Parent, Merger Sub and their respective agents on how such withholding is to be executed, the rate or rates of withholding to be applied and how to identify any such non-Israeli residents; and (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
holders of Gix Media Shares and/or Gix Media Warrants that are Israeli residents (e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or as defined in the aggregate, reasonably Ordinance or as will be expected determined by the ITA) (other than Gix Media Shares subject to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) 102 of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(gOrdinance) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership exempting Viewbix Parent, Merger Sub and their respective agents from any obligation to withhold Israeli tax from any consideration payable or otherwise deliverable pursuant to the Merger, or clarifying that no such obligation exists, or (y) disregarded as an entity separate from instructing Viewbix Parent, Merger Sub and their respective agents on how such withholding is to be executed, the rate or rates of withholding to be applied. Gix Media shall inform and update Viewbix Parent and Merger Sub, and its ownerIsraeli counsel, for U.S. federal income tax purposesof any correspondence, meetings, discussions and calls with the ITA with respect to the Tax Ruling. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) The final text of the Clearwire Disclosure ScheduleTax Ruling shall be subject to the approval of Viewbix Parent and Merger Sub, such approval not to be unreasonably withheld, conditioned or delayed. If the Tax Ruling is not obtained, each of Viewbix Parent, Merger Sub, and its Israeli counsel,, the Merger Exchange Agent and other transactions contemplated by Articles 2their respective agents (each, 3 a “Payor”) shall be entitled to deduct and 4 withhold (or cause to be deducted and withheld) from any consideration payable pursuant to this Agreement (i.e. the shares of Viewbix Parent Common Stock) such amounts as are required to be deducted and withheld, if any, under applicable tax law. To the extent that amounts are so withheld and timely remitted to the applicable governmental authority, such withheld amounts shall be treated for all purposes of this Agreement will not result as having been paid to the person in respect of which such deduction and withholding was made. The Parties shall cooperate in good faith to eliminate or reduce any such deduction or withholding (including through the request and provision of any statements, forms or other documents to reduce or eliminate any such deduction or withholding. To the extent that the Payor is obliged to withhold Israeli taxes, each Gix Media shareholder (each, a “Payee”) shall provide the Payor with the amount in cash due with regards to such Israeli taxes prior to the Merger Effective Date. In the event that the Payee fails to provide the Payor with the full cash amount necessary to satisfy such Israeli taxes (as determined in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 sole discretion of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax lawapplicable Payor) or, prior to the Knowledge Merger Effective Date, the Payor shall be entitled to sell the Payee’s shares of ClearwireViewbix Parent Common Stock to the extent necessary to satisfy the full amount due with regards to such Israeli taxes (after taking into account any taxes due, any other material items if any, with respect to the sale of income or Tax (“Clearwire Transaction Tax Items”such Viewbix Parent Common Stock). For Each Payee hereby waives, releases and absolutely and forever discharges the avoidance of doubt, Clearwire Transaction Tax Items shall not include Payor from and against any items of income or gain of Sprint or and all claims for any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described forfeiture or sale of any portion of the shares of Viewbix Parent Common Stock otherwise deliverable to such Payee in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).compliance with the withholding requirements under this section.
Appears in 1 contract
Samples: Merger Agreement (Viewbix Inc.)
Tax. Any and all payments to any Secured Party or FFB by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all taxes, levies, imposts, deductions, charges or withholdings imposed by any central bank or other Governmental Authority, and all liabilities with respect thereto, excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party or FFB, as applicable, by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party or FFB, as applicable, and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding taxes or other tax based on gross income imposed by the United States of America that are not attributable to any Change of Law or the interpretation or administration of any Governmental Rule by any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Covered Taxes"). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party or FFB, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party or FFB, as applicable, receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules. If the Borrower shall make any payment with respect to Covered Taxes under this clause (a) None to or for the benefit of any Secured Party or FFB and if such Secured Party or FFB, as applicable, shall claim any credit or deduction for such Covered Taxes against any other taxes payable by such Secured Party or FFB then such Secured Party or FFB, as applicable, shall pay to the assets of Clearwire Borrower an amount equal to the amount such Secured Party or any of FFB determines in its Subsidiaries sole discretion is subject the amount by which such other taxes are actually reduced; provided that the aggregate amount payable by such Secured Party or FFB pursuant to any material Encumbrance for Taxes, except for liens for Taxes this sentence shall not yet due and payable.
(b) All material Tax Returns required to be filed exceed the aggregate amount previously paid by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Borrower with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material such Covered Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. Except as otherwise disclosed on Schedule 4.20: (ai) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material all Tax Returns required due to be have been filed by Clearwire BRFHH, BRFHH-S, and BRFHH-M or any of its Subsidiaries by BRF on their behalf through the date hereof in accordance with all applicable Laws have been duly and timely filed, filed (taking into account valid extensions duly obtained) and all those Tax Returns are true, correct and complete in all material respects.
; (cii) All all Taxes, deposits and other payments for which BRFHH, BRFHH-S, or BRFHH-M may have any material Taxes owed by Clearwire and its Subsidiaries liability (whether or not shown on any Tax Return) have been paid in full or are accrued as liabilities for Taxes on the books and records of BRFHH, BRFHH-S, or BRFHH-M as applicable; (iii) the amounts so paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except together with all amounts accrued as liabilities for Taxes that may arise solely (including Taxes accrued as result currently payable) on the books of actions BRFHH, BRFHH-S, or transactions following BRFHH-M, as applicable, shall be adequate, based on the Execution Date permitted by this Agreementtax rates and applicable Laws in effect, neither Clearwire nor to satisfy all liabilities for Taxes of BRFHH, BRFHH-S, or BRFHH-M as applicable in any jurisdiction through the Closing Date, including Taxes accruable upon income earned through the Closing Date; (iv) there are not now any extensions of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included time in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding effect with respect to the dates on which any Tax Returns were or are due to be filed by or on behalf of BRFHH, BRFHH-S, or BRFHH-M; (v) all deficiencies asserted as a result of any completed examination of a Tax Return of BRFHH, BRFHH-S, or BRFHH-M have been paid in full, accrued on the books of BRFHH, BRFHH-S, or BRFHH-M, as applicable, or finally settled, and no issue has been raised in any such examination that, by application of the same or similar principles, reasonably could be expected to result in a material proposed deficiency for any other period not so examined; (vi) no claims have been asserted and no proposals or deficiencies for any Taxes of Clearwire BRFHH, BRFHH-S, or any BRFHH-M being asserted, proposed or threatened, and no audit or investigation of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any personReturn of BRFHH, BRFHH-S, or BRFHH-M is currently underway, pending or, to BRF’s Knowledge, threatened; (iivii) none of BRFHH, BRFHH-S, or BRFHH-M has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed claim made against BRFHH, BRFHH-S, or threatened BRFHH-M by any Governmental Entity in a jurisdiction where BRFHH, BRFHH-S, or BRFHH-M as applicable do not file Tax claims Returns and where they are is or assessments with respect may be subject to Clearwire taxation; (viii) BRFHH, BRFHH-S, or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries BRFHH-M have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid by any of them in connection with payments amounts paid or owing to employeesany employee, independent contractorscontractor, creditors, shareholders creditor or stockholder thereof or other third parties.
party; (gix) Neither Clearwire nor any of its Subsidiaries has entered intothere are no outstanding waivers or agreements by BRFHH, BRFHH-S, or otherwise participated (directly BRFHH- M for the extension of time for the assessment of any Taxes or indirectly) indeficiency thereof, nor are there any “listed transaction”requests for rulings, outstanding subpoenas or requests for information, notice of proposed reassessment of any property owned or leased by BRFHH, BRFHH-S, or BRFHH-M as applicable or any reportable transaction the principal purpose of which was tax avoidanceother matter pending between BRFHH, within the meaning of Sections 6011BRFHH-S, 6111 or 6112 of the Code BRFHH-M and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either any taxing authority; and (x) treated as a partnership there are no Encumbrances for Taxes with respect to BRFHH, BRFHH-S, or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire BRFHH-M or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) the Assets other than as described in Section 1.1(b)Encumbrances for Taxes that are not yet due and payable, Section 1.1(c) and this Section 6.7(h)no such Encumbrances are pending or threatened.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes17.1 All Tax returns, except for liens for Taxes not yet due estimates, information statements, reports, declarations, and payable.
(b) All material Tax Returns required to be other filings have been duly filed by Clearwire or any the Company and the Subsidiary in accordance with the relevant provisions of its Subsidiaries have been timely filedApplicable Law, and all those with the appropriate Tax authorities (collectively, “Tax Returns”). Such Tax Returns are true, true and correct and complete in all material respects and have been completed in SHARE PURCHASE AND SHAREHOLDERS’ AGREEMENT E-STAMP PAPER #: SUBIN-KAKACRSFL0897652837512029O EXECUTION COPY accordance with Applicable Law in all respects.
(c) All material . The Company and the Subsidiary have paid all Taxes owed by Clearwire due and its Subsidiaries payable (whether or not shown on any Tax Return) Returns), have complied with all Applicable Laws in relation to transfer pricing, and have maintained all relevant documentation in relation to Tax compliance (including applicable transfer pricing documentation).
17.2 There is no Tax deficiency outstanding or assessed or proposed against the Company and/or the Subsidiary, nor has either the Company of the Subsidiary extended the period for the assessment or collection of any Tax. No adjustment relating to any Tax returns filed by the Company and the Subsidiary has been paidproposed by any Tax authority to the Company and/or the Subsidiary, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementsor any representatives thereof. Except for Taxes that may arise solely as result of actions or transactions following Neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its Subsidiaries the Subsidiary has incurred any liability (whether for any unpaid Taxes which has not been accounted for or not due) for material Taxes since the date of the most recent balance sheet included reserved in the Clearwire Financial Statements other than in the ordinary course of businessits respective accounts.
(d) Except as disclosed in Section 6.7(d) of 17.3 The Company and the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Subsidiary have withheld with respect to their respective employees and all other Third Parties, all applicable Taxes required to be withheld under Applicable Law and have made payment of Clearwire or any of its Subsidiariessuch Taxes to the appropriate authorities within the due dates thereof. Except as disclosed in Section 6.7(d) of The Company and the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries Subsidiary have withheld and paid over for appropriate contributions to the relevant Taxing Authorities all Taxes provident fund, superannuation, gratuity, employee state insurance and any other contributions, each as required to have been withheld and paid in connection with payments to employeesby Applicable Law.
17.4 There is no Tax deficiency outstanding or assessed or proposed against the Company and/or the Subsidiary, independent contractors, creditors, shareholders nor has the Company or the Subsidiary extended the period for the assessment or collection of any Tax. No audit or other third parties.
(g) Neither Clearwire examination of any Tax Return of the Company or the Subsidiary by any Tax authority is presently in progress, nor has the Company or the Subsidiary been notified of any of its Subsidiaries request for such an audit or other examination. No adjustment relating to any Tax Returns filed by the Company and/or the Subsidiary has entered into, been proposed by any appropriate authority to the Company or otherwise participated (directly or indirectly) in, any “listed transaction”the Subsidiary, or any reportable transaction representative thereof. Neither the principal purpose of Company nor the Subsidiary has any liability for any unpaid Taxes which was tax avoidance, within has not been accounted for or reserved in the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyrelevant Accounts.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership 17.5 No audit or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception examination of any indebtedness issued Tax Return by Clearwire between any Tax authority is presently in progress, nor has the Execution Date and Company or the Closing in accordance with Sections 10.1(b)(iv)(F) Subsidiary been notified of any request for such an audit or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)other examination.
Appears in 1 contract
Samples: Share Purchase and Shareholders’ Agreement (Kaleyra, Inc.)
Tax. 16.1 All registrations, returns, computations and notices which are or have been required to be made or given by each Group Company for any Tax purpose—
(a) None of have been made or given within the assets of Clearwire or any of its Subsidiaries is subject to any requisite periods and on a proper basis and are up-to-date and correct in all material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.respects;
(b) All material are not, or are not expected to be, the subject of any dispute with any Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.Authority; and
(c) All material Taxes owed by Clearwire all Tax shown as due on such returns has been paid.
16.2 Each Group Company is in possession of sufficient information or has reasonable access to such information to enable it to compute its present and its Subsidiaries (whether or not shown future liability to Tax in so far as it depends on any transaction occurring on or before Completion and has retained under its control or in its possession all records and documents which it is required by the law of any country to retain for tax purposes.
16.3 Each Group Company has complied with all statutory provisions relating to Tax Return) which require the deduction of Tax from any payment made by it, and has accounted for any such Tax which ought to have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessaccounted for.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule16.4 Each Group Company has complied with all material statutory provisions relating to VAT or other applicable sales taxes, there is no currently pending audit or administrative or judicial proceeding including requirements with respect to Taxes record keeping and the making of Clearwire or returns, and has properly accounted for any such VAT.
16.5 Each Group Company—
(a) is separately registered for VAT in every jurisdiction in which it operates and has never been treated as part of a group of companies for VAT purposes in any jurisdiction;
(b) is able to recover all material amounts of its Subsidiaries. Except as disclosed VAT input tax in Section 6.7(dwhichever jurisdiction it is incurred; and
(c) does not own any asset and has not incurred any expense in respect of which Part XV of the Clearwire UK VAT Regulations (Capital Goods Scheme) or its equivalents in any other jurisdiction applies.
16.6 The Disclosure ScheduleLetter contains all material particulars of any election to waive the exemption from VAT made or agreed to be made under schedule 10 to the Value Added Tax Act 1994 (or equivalent election under the law of any other relevant jurisdiction) by—
(a) any Group Company; or
(b) any person whose election (by reason of a close connection with the Group Company in question) is binding upon any Group Company under the law of the relevant jurisdiction as though it had been made by the Group Company itself, neither Clearwire nor in respect of any property in which the Company has an interest and no event has occurred as a result of its Subsidiaries which any such election is and may cease to be valid and effective.
16.7 So far as the Vendor is aware, all documents (iother than those which have ceased to have any legal effect) to which any Group Company is a party and which are material to or bound by the business of such Group Company have been duly stamped where required and any material closing agreement, offer stamp registration and transfer duties which are due in compromise, gain recognition agreement or any other agreement relation to such documents have been duly paid and no such document retained in a particular jurisdiction would attract duty if brought into another jurisdiction.
16.8 The level of deferred tax provision (if any) in the Accounts is consistent with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) UK GAAP.
16.9 No Group Company has entered into any waivers or extensions arrangements whereby any Member of the statute Group obtains the benefit of limitations with any losses or other tax relief arising in another company in respect of which any payment remains due or outstanding, or where the effectiveness of such arrangements is likely to material Taxesbe challenged by any Tax Authority.
(e) Clearwire has 16.10 So far as the Vendor is aware, no Knowledge of Group Company is involved in any proposed or threatened dispute with any Tax claims or assessments with respect to Clearwire or Authority concerning any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be matter expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed affect the business of such Group Company in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire any material way and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidanceno Group Company has, within the meaning of Sections 6011previous three years, 6111 been subject to any non-routine audit or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyinvestigation by any Tax Authority.
(h) Except as set forth 16.11 Each Group Company has at all times since incorporation been exclusively resident for tax purposes in Section 6.7(h) its country of incorporation or organisation according to the Clearwire Disclosure Schedulelaws of such country, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)will be so resident at Completion.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 16.12 The entry into or Completion of this Agreement will not result in any charge to Tax accruing to any Group Company as a result of that Group Company having previously acquired any asset from another company which was at the recognition time of that acquisition a member of the same group for any Tax purpose.
16.13 None of the Assets which are owned by NewCo any Group Company are the subject of any charge, power of sale or mortgage in favour of any Tax Authority.
16.14 The Disclosure Letter contains all material details of every—
(a) claim, election or disclaimer taken into account for the purposes of the Accounts or return required to be made by the Company and in each case the time limit for making of which will not have expired on or before Completion; and
(b) subsisting formal or informal arrangement or agreement entered into by the Company with any Tax Authority with regard to any of its Subsidiaries of income or gain under Section 1502 Tax affairs. 51 PART 4—INTELLECTUAL PROPERTY
17.1 Trade marks material to the business of the Code Group are listed in Part 1 of Schedule 4.
17.2 Save in respect of any Intellectual Property which is the subject of an IT Contract or Intra-Group Trade Xxxx Licences which have been granted to the Vendor or one of the Group Companies, a Group Company is the sole legal and beneficial owner of all Intellectual Property (including the Regulations thereunder (subject matter thereof) free from all liens, charges, equities, encumbrances, licences and adverse rights of any description.
17.3 As far as the Vendor is aware, none of the Intellectual Property is subject to any challenge or attack by a third party or competent authority.
17.4 So far as the Vendor is aware, no Group Company or any comparable provision under state or local income Tax law) or, to the Knowledge other party is in material breach of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Intra-Group Trade Xxxx Licence.
(j) Section 6.7(j) of 17.5 No Group Company has been, within the Clearwire Disclosure sets forth, in all material respects, six years preceding the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) date of this Agreement, deemed party to any legal proceedings relating to any Intellectual Property.
17.6 There are no outstanding or potential claims against any Group Company under any contract or under section 40 of the Patents Xxx 0000 for U.S. federal income tax purposes employee compensation in respect of any Intellectual Property.
17.7 So far as the Vendor is aware, the carrying on of the Group Company's business or businesses as presently constituted does not require, and has not at any time required, any licences or consents or the making of royalty or similar payments by any Group Company to be assumed any third party relating to intellectual property.
17.8 So far as the Vendor is aware, no Group Company's activities infringe any intellectual property rights belonging to or vested in any third party.
17.9 Insofar as Intellectual Property is not owned by NewCo LLC a Group Company, its use is licensed to the relevant Group Company under the Intra-Group Trade Xxxx Licences or its benefit is received pursuant to the Management Services Agreement and/or the IT Contracts.
17.10 The Intellectual Property, the IT Contracts, and the rights granted to the Group under the Management Services Agreement comprise all material intellectual property required by the Group for its business or businesses as presently constituted.
17.11 Sea Containers Services Limited is the registered proprietor of the "XxxXxx" and "SuperSeaCat" trade marks and is the owner of the goodwill in connection with those trade marks acquired through the transactions described use of those trade marks in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)the business carried on by the Group.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Sea Containers LTD /Ny/)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Sun Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Sun and the Sun Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Sun and the Sun Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Sun or any of the Sun Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Sun or any of the Sun Subsidiaries in respect of any Tax or Tax asset and neither Sun nor any of its the Sun Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of Sun or the Sun Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Sun or indirectlyany of the Sun Subsidiaries.
(vii) in, Neither Sun nor any Sun Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date Sun countersigns this Agreement, neither Sun nor any Sun Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Sun nor any Sun Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Sun or any Sun Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Sun or any Sun Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Sun or any Sun Subsidiary does not file a Tax Return that Sun or such Sun Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Sun nor any Sun Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Sun or other Sun Subsidiaries).
(xii) Sun is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 4.18(a)(xii) of the Sun Disclosure Schedule sets forth all elections made by Clearwire Sun or any of its Affiliates Sun Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except as set forth in Section 6.7(i) Each of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code Sun and the Regulations thereunder (or any comparable provision under state or local income Sun Subsidiaries is, and has been since formation, a Tax law) or, to the Knowledge resident only in is jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire incorporation for U.S. federal income Tax purposes following and is not and has not been treated as having a permanent establishment (within the Merger.
(k) Any liabilities meaning of Clearwirean applicable Tax treaty), with the possible exception branch or taxable presence in any jurisdiction other than its jurisdiction of any indebtedness issued by Clearwire between the Execution Date incorporation. Sun is, and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreementhas been since formation, deemed treated as a foreign corporation for U.S. federal income tax purposes.
(xiv) Neither Sun nor any of the Sun Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Sun SEC Documents reflect an adequate reserve for all Taxes payable by Sun and the Sun Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(b) Neither Sun nor any Sun Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Sun Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code.
(c) Neither Sun nor any Sun Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be assumed treated as a Tax resident of any jurisdiction other than Israel following the Mergers.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Sun Ordinary Shares (i) were issued by NewCo LLC in connection Sun (or any current or former Sun Affiliate) with an exercise price that was less than the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” fair value of the underlying Sun Ordinary Shares (or any shares of any Sun Subsidiary) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. (a) None of Each Xxxxxx’x Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Xxxxxx’x Company was required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Xxxxxx’x Company are true, correct and complete in all material respects.
(c) . All material Taxes owed (or required to be remitted) by Clearwire and its Subsidiaries any Xxxxxx’x Company (whether or not shown or required to be shown on any Tax Return) have been paidtimely paid to the appropriate Governmental Body. There are no Encumbrances on any of the assets of the Xxxxxx’x Companies that arose in connection with, except for those or otherwise relate to, any failure (or alleged failure) to pay any Tax.
(b) Each Xxxxxx’x Company has withheld or collected, and timely paid to the appropriate Governmental Body, all Taxes being contested in good faith and for which adequate reserves required to have been established withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in Clearwire’s Financial Statements. Except connection with amounts paid or owing to any employee, customer, creditor, stockholder, independent contractor, or other third party.
(c) The unpaid Taxes of the Xxxxxx’x Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes that may arise solely as result of actions or transactions following (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date face of the most recent balance sheet included in the Clearwire Financial Statements other Xxxxxx’x Interim Balance Sheet (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the ordinary course passage of businesstime through the Closing Date in accordance with the past custom and practice of the Xxxxxx’x Companies in filing their Tax Returns.
(d) Except as disclosed in set forth on Section 6.7(d3.14(d) of the Clearwire Xxxxxx’x Disclosure ScheduleLetter, there is no currently pending audit dispute or administrative claim concerning any Liability for Taxes paid, collected or judicial proceeding with respect remitted (or to Taxes of Clearwire be paid, collected or permitted) by any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries Xxxxxx’x Company either (i) is a party to claimed or bound raised by any material closing agreement, offer Governmental Body in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, writing or (ii) as to which any Xxxxxx’x Company has entered into any waivers or extensions Knowledge. Except as set forth in Section 3.14 of the Xxxxxx’x Disclosure Letter, no Xxxxxx’x Company has waived any statute or period of limitations with respect to material Taxesany Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Xxxxxx’x Company has been requested, granted or currently is in effect.
(e) Clearwire No Xxxxxx’x Company has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Section 280G of the Code (or any corresponding or similar provision of state, local or foreign Tax law). Except as set forth in Section 3.14 of the Xxxxxx’x Disclosure Letter, no Knowledge Xxxxxx’x Company is a party to any Tax allocation, sharing, reimbursement or similar agreement. No Xxxxxx’x Company has been a member of any proposed Affiliated Group filing a consolidated, combined or threatened unitary Tax claims or assessments with respect to Clearwire Return (other than a group the common parent of which was Xxxxxx’x). No Xxxxxx’x Company has any Liability for Taxes of any Person (other than any Xxxxxx’x Company) under Section 1.1502-6 of the Treasury Regulation (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Xxxxxx’x Company has distributed stock of another Person, or has had its Subsidiaries thatstock distributed by another Person, if upheld, would, individually in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the aggregate, reasonably Code. No Xxxxxx’x Company has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. Xxxxx will not be expected required to have a Clearwire Material Adverse Effectdeduct and withhold any amount under Section 1445(a) of the Code or otherwise upon the transfer of the Shares to Xxxxx.
(f) Except as disclosed in Section 6.7(f) 3.14 of the Clearwire Xxxxxx’x Disclosure ScheduleLetter lists each agreement, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employeescontract, independent contractors, creditors, shareholders plan or other third parties.
arrangement (gwhether or not written and whether or not an Employee Benefit Plan) Neither Clearwire nor to which any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any Xxxxxx’x Company is a party that is a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, nonqualified deferred compensation plan” within the meaning of Sections 6011, 6111 or 6112 Section 409A of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposespromulgated hereunder. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
Each such nonqualified deferred compensation plan (i) Except as set forth complies, and is operated and administered in accordance, with the requirements of Section 6.7(i) 409A of the Clearwire Disclosure ScheduleCode, the Merger Treasury Regulations promulgated hereunder and any other transactions contemplated by Articles 2, 3 IRS guidance issued thereunder and 4 of this Agreement will not result (ii) has been operated and administered in the recognition by NewCo or any of its Subsidiaries of income or gain under good faith compliance with Section 1502 409A of the Code and from the Regulations thereunder (or any comparable provision under state or local income Tax law) orperiod beginning on January 1, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)2005.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Merger Agreement (Lance Inc)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Trident and the Trident Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Trident or any of the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in respect of any Tax or Tax asset and neither Trident nor any of its the Trident Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Trident or the Trident Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or indirectlyany of the Trident Subsidiaries.
(vii) in, Neither Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Trident or any Trident Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Trident or any Trident Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Trident nor any Trident Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Trident or other Trident Subsidiaries).
(xii) Trident is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Clearwire Trident or any of its Affiliates Trident Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents publicly available prior to the date of this Agreement reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the Regulations thereunder (meaning of an applicable Tax treaty), branch or taxable presence in any comparable provision under state or local income Tax law) or, to the Knowledge jurisdiction other than its jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)incorporation.
(jc) Section 6.7(j) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of the Clearwire Disclosure sets forthany fact or circumstance, in all material respects, the information concerning that could reasonably be expected to cause Sun to be treated as a Tax resident of any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes jurisdiction other than Israel following the Sun Merger.
(kd) Any liabilities None of Clearwire, the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the possible exception fair value of the underlying Trident Common Stock (or any shares of any indebtedness issued by Clearwire between Trident Subsidiary) for which the Execution Date and options or warrants were exercisable at the Closing in accordance with Sections 10.1(b)(iv)(Ftime such options or warrants were issued, (ii) are, or 10.1(b)(iv)(H) of this Agreementhave ever been, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. Except as would not reasonably be expected to have a Parent Material Adverse Effect and except as otherwise set forth in Section 4.10 of the Parent Disclosure Letter:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed by Clearwire or on behalf of Parent or any of its Subsidiaries (and, to the Knowledge of Parent, all Tax Returns required to be filed by any Person (other than the Company and its Subsidiaries) with respect to or on behalf of any affiliated, consolidated, combined, unitary or similar group for Tax purposes of which Parent or any of its Subsidiaries is or has been a member) have been timely filed, and filed when due (taking into account any extension of time within which to file) in accordance with all those applicable Laws; (ii) all such Tax Returns are true, correct accurate and complete in all material respects.
respects and have been prepared in compliance with all applicable Laws; and (ciii) All material all Taxes owed due and payable by Clearwire and Parent or any of its Subsidiaries (whether including any Taxes that are required to be collected, deducted or not shown on withheld in connection with any Tax Returnamounts paid or owing to, or received or owing from, any employee, creditor, customer, independent contractor or other third party) have been timely paid, except or collected, deducted and withheld and remitted to the appropriate Tax Authority; except, in the case of each of clauses (i) through (iii), for those Taxes being or Tax matters contested in good faith and for which adequate reserves that have been established adequately provided for, in Clearwire’s Financial Statements. Except accordance with GAAP, in the Parent SEC Documents filed prior to the date hereof;
(b) the accruals and reserves for Taxes that may arise solely as result reflected in the consolidated financial statements included in the Parent SEC Documents are adequate, in accordance with GAAP, and cover all Taxes of actions Parent and its Subsidiaries for periods (or transactions following portions thereof) ending on or prior to the Execution Date permitted date of such consolidated financial statements;
(c) since January 1, 2013, no written claim has been made by this Agreement, neither Clearwire nor any Tax Authority in a jurisdiction where Parent or any of its Subsidiaries has incurred does not file a Tax Return that Parent or any liability (whether of its Subsidiaries is, or not due) for material Taxes since the date of the most recent balance sheet may be, subject to Tax by or required to file or be included in the Clearwire Financial Statements other than a Tax Return in the ordinary course of business.that jurisdiction;
(d) Except as disclosed in Section 6.7(d) there are no Encumbrances on any of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes assets of Clearwire Parent or any of its Subsidiaries. Except as disclosed Subsidiaries that arose in Section 6.7(dconnection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(e) (i) no outstanding written claim has been received by, and no audit, action or proceeding is in progress, against or with respect to Parent or any of the Clearwire Disclosure Scheduleits Subsidiaries in respect of any Tax; and (ii) all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Tax Authority have been paid or fully and finally settled;
(f) neither Clearwire Parent nor any of its Subsidiaries (i) is has been, since January 1, 2009, a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or member of an affiliated group (ii) has entered into any waivers or extensions within the meaning of Section 1504 of the statute Code) or an affiliated, consolidated, combined, unitary, aggregate or similar group for state, local or foreign Tax purposes, other than a group of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire which Parent or any of its Subsidiaries thatis the common parent, if upheld, would, individually (ii) has any Liability for the Taxes of any Person (other than Parent or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(fany of its Subsidiaries) Except as disclosed in under Section 6.7(f) 1.1502-6 of the Clearwire Disclosure ScheduleRegulations (or any similar provision of state, Clearwire and each local or foreign Tax Law), as a transferee or successor or by Contract or (iii) is a party to any Tax sharing, Tax allocation or Tax indemnification agreement (other than commercial agreements the primary purpose of its Subsidiaries have withheld and paid over which does not relate to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.Taxes);
(g) Neither Clearwire no waiver or extension of any statute of limitations in respect of Taxes or any extension of time with respect to a Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries;
(h) neither Parent nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of any (i) adjustment pursuant to Section 481(c) of the Code (or any similar provision of state, local or foreign Law) as a result of a change in method of accounting made prior to the Closing, (ii) installment sale, intercompany transaction or open transaction disposition made on or entered into prior to the Closing, (iii) prepaid amount received on or prior to the Closing, (iv) “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law) entered into prior to the Closing or (v) election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law);
(i) neither Parent nor any of its Subsidiaries has entered into, been a “distributing corporation” or otherwise participated (directly or indirectly) in, any a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, controlled corporation” within the meaning of Sections 6011, 6111 or 6112 Section 355(a)(1)(A) of the Code and the Treasury Regulations thereunder or has received in a written opinion from a tax advisor that was distribution intended to provide protection against a tax penalty.
(h) Except as set forth in qualify for tax-free treatment under Section 6.7(h) 355 of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either Code (x) treated as a partnership in the two (2) years prior to the date of this Agreement or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire which distribution is part of a “plan” or any “series of its Affiliates to treat NewCo LLC or its Subsidiaries related transactions” (including Clearwire Sub LLC) other than as described in within the meaning of Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i355(e) of the Clearwire Disclosure Schedule, Code) with the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or Agreement;
(j) neither Parent nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j1.6011-4(b)(2) of the Clearwire Disclosure sets forthRegulations or any similar provision of state, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.local or foreign Law;
(k) Any liabilities Parent is not controlled by a “non-resident corporation” for purposes of Clearwire, with Section 212.3 of the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(DIncome Tax Act (Canada).
Appears in 1 contract
Samples: Merger Agreement (Lions Gate Entertainment Corp /Cn/)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Sun Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Sun and the Sun Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Sun and the Sun Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Sun or any of the Sun Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Sun or any of the Sun Subsidiaries in respect of any Tax or Tax asset and neither Sun nor any of its the Sun Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of Sun or the Sun Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Sun or indirectlyany of the Sun Subsidiaries.
(vii) in, Neither Sun nor any Sun Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except During the two (2) year period ending on the date of this Agreement, neither Sun nor any Sun Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Sun nor any Sun Subsidiary (i) has been a member of an affiliated group filing a consolidated, combined, affiliated, unitary or similar Tax Return (other than a group the common parent of which was Sun or any Sun Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Sun or any Sun Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as set forth a transferee or successor.
(x) In the past three (3) years, no written claims have ever been made by any Tax authority in a jurisdiction where Sun or any Sun Subsidiary does not file a Tax Return that Sun or such Sun Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Sun nor any Sun Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Sun or other Sun Subsidiaries).
(xii) Sun is, and has always been, a per se corporation as defined in Treasury Regulations Section 6.7(h301.7701-2(b)(8)(i). Section 4.18(a)(xii) of the Clearwire Sun Disclosure ScheduleSchedule sets forth all elections made by Sun or any Sun Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Each of Sun and the Sun Subsidiaries is, each Subsidiary and has been since formation, a Tax resident only in is jurisdiction of Clearwire incorporation for Tax purposes and is either not and has not been treated as having a permanent establishment (x) within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation. Sun is, and has been since formation, treated as a partnership or (y) disregarded as an entity separate from its owner, foreign corporation for U.S. federal income tax purposes. No action .
(xiv) Neither Sun nor any of the Sun Subsidiaries has been taken by Clearwire advantage of any relief or Tax deferral provisions or any carryback of its Affiliates net operating losses or similar Tax items related to treat NewCo LLC COVID-19 for Tax purposes whether federal, state, local or its foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Sun SEC Documents reflect an adequate reserve for all Taxes payable by Sun and the Sun Subsidiaries (including Clearwire Sub LLCexcluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) other than for all Taxable periods and portions thereof through the date of such financial statements.
(b) Neither Sun nor any Sun Subsidiary (i) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as described a U.S. corporation under Section 7874(b) of the Code; or (ii) was created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h301.7701-5(a).
(c) Neither Sun nor any Sun Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) Except a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as set forth such term is defined in Section 6.7(i7701 of the Code) as a result of the application of Section 7874(b) of the Clearwire Disclosure Schedule, Code or (iii) a “surrogate foreign corporation” within the Merger and other transactions contemplated by Articles 2, 3 and 4 meaning of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 7874(a)(2)(B) of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and after the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Date.
Appears in 1 contract
Samples: Merger Agreement (Stratasys Ltd.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject Any and all payments to any material Encumbrance for Secured Party by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those liabilities with respect thereto, excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxes or other Tax Returns are true, correct and complete in based on gross income imposed by the United States of America (all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those such Taxes being contested hereinafter referred to as “Covered Taxes”). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in good faith respect of any sum payable hereunder or under any other Loan Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and for which adequate reserves have been established (C) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in Clearwire’s Financial Statementsaccordance with all Governmental Rules. Except for Taxes that may arise solely as result of actions or transactions following If the Execution Date permitted by this Agreement, neither Clearwire nor Borrower shall make any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding payment with respect to Covered Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in under this Section 6.7(d3.1.2(a) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by for the benefit of any material closing agreement, offer in compromise, gain recognition agreement Secured Party and if such Secured Party shall claim any credit or deduction for such Covered Taxes against any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any personTaxes payable by such Secured Party that are not Covered Taxes then such Secured Party shall pay to the Borrower an amount equal to the amount the Secured Party determines in its sole discretion, or (ii) has entered into any waivers or extensions of absent manifest error, is the statute of limitations amount by which such other Taxes are actually reduced; provided, that the aggregate amount payable by such Secured Party pursuant to this sentence shall not exceed the aggregate amount previously paid by the Borrower with respect to material Taxessuch Covered Taxes and no amount shall be payable while a Potential Default or Event of Default is continuing.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of 10.1 The Seller shall indemnify the assets of Clearwire Buyer and the Company from and against all Tax liabilities
10.1.1 all unpaid Taxes which were or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due are levied against the Company and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns which are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over attributable to the relevant Taxing Authorities all Taxes required period up to have been withheld and paid in connection with payments including the Closing Date, 24:00 hours, on the basis of a pro forma tax assessment (hereinafter referred to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any as “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax ItemsPeriod”). For the avoidance of doubt: This indemnification shall also apply if the Tax Authorities challenged the fiscal unities for corporate income tax, Clearwire Transaction trade tax and VAT purposes which would lead to a tax burden on the level of the Company;
10.1.2 any liability of the Company for any Tax Items shall not include any items debt of income or gain of Sprint the Seller or any of its Subsidiaries (including Seller’s Affiliate(s) other than the Company;
10.1.3 any income damages, expenses or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) costs of the Clearwire Disclosure sets forth, in all material respects, Company or the information concerning any limitations on the ability Buyer arising as a result of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing facts which form a claim in accordance with Sections 10.1(b)(iv)(F) 10.1.1 and 10.1.2.
10.2 The indemnification under this clause 10 shall be excluded if and to the extent that the Tax liabilities:
10.2.1 have been duly and fully paid, before the Effective Date, to the competent Tax Authority;
10.2.2 have been duly and fully provided for in the Reference Date Accounts as Tax liability or 10.1(b)(iv)(H) as Tax provision;
10.2.3 have been duly and fully reflected in the Closing Statement and have been taken into account in adjusting the Purchase Price;
10.2.4 result from the Buyer causing or allowing the Company to change its methods of Tax accounting or other measures of the Buyer, e.g. by exercising tax election rights introduced after the Effective Date, unless required by law;
10.2.5 result from the Company entering into any reorganization or performing any other act after the Effective Date that has retroactive effect under Tax law to the Tax Period;
10.2.6 result from any Contest in which the Buyer has breached any of its obligations under this AgreementAgreement except to the extent such breach did not cause such Tax liability; or
10.2.7 are covered by a realized claim of the Company and/or the Buyer for reimbursement, deemed repayment or indemnification against any third party for U.S. federal income tax purposes such Tax liabilities.
10.3 If the Company is entitled to any Tax benefit resulting from a circumstance giving rise to a Tax indemnification under this Section 10, e.g. from the extension of any amortization or depreciation period, higher depreciation allowances or deductions of benefits by refund, set-off or reduction of Taxes, the Tax benefit shall reduce the Tax liability to be assumed indemnified by NewCo LLC the Seller unless reflected in connection with the transactions described Closing Statement and taken into account in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)adjusting the Purchase Price.
Appears in 1 contract
Samples: Sale and Transfer of Shares Agreement (Cascade Microtech Inc)
Tax. (a) None Each member of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Rio Alto Group has duly and payable.
(b) All material timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Each member of the Rio Alto Group has paid on a timely basis all Taxes owed which are due and payable, all assessments and reassessments, and all other Taxes due and payable by Clearwire and its Subsidiaries (whether them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Rio Alto. Except Rio Alto and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Rio Alto for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Rio Alto and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire any member of the Rio Alto Group, and no member of the Rio Alto Group is a party to any action or proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Rio Alto, threatened against Rio Alto or any of its Subsidiaries. Except as disclosed Subsidiaries or affiliates or any of their respective assets.
(d) No Claim has been made by any Governmental Entity in Section 6.7(da jurisdiction where Rio Alto or any of its Subsidiaries or affiliates does not file Tax Returns that Rio Alto or any of its Subsidiaries or affiliates is or may be subject to Tax by that jurisdiction.
(e) There are no Encumbrances (other than Permitted Encumbrances) with respect to Taxes upon any of the Clearwire Disclosure Scheduleassets of Rio Alto or any of its Subsidiaries or affiliates.
(f) Rio Alto and each of its Subsidiaries and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so.
(g) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any Claim for, neither Clearwire or the period for the collection or assessment or reassessment of Taxes due from Rio Alto or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Rio Alto and each of its Subsidiaries and affiliates has made available to Sulliden true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Rio Alto nor any of its Subsidiaries (i) is a party or affiliates has ever directly or indirectly transferred any property to or bound by supplied any material closing agreement, offer in compromise, gain recognition agreement services to or acquired any other agreement property or services from a Person with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or whom it was not dealing at arm’s length (ii) has entered into any waivers or extensions for the purposes of the statute Tax Act) for consideration other than consideration equal to the fair market value of limitations with respect to material Taxesthe property or services at the time of the transfer, supply or acquisition of the property or services.
(ej) Clearwire has There are no Knowledge circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any proposed equivalent provision under provincial or threatened Tax claims or assessments with respect foreign Law, to Clearwire Rio Alto or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) affiliates. No member of the Clearwire Disclosure ScheduleRio Alto Group has made, Clearwire and each of its Subsidiaries have withheld and paid over prepared and/or filed any elections, designations or similar filings relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or entered into any agreement or other third parties.
(g) Neither Clearwire nor any arrangement in respect of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income Taxes or Tax (“Clearwire Transaction Tax Items”). For Returns that has effect for any period ending after the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Rio Alto is not a non-resident of Clearwire, with Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date and Tax Act. Each of Rio Alto’s Subsidiaries is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire with respect to the Transferred Assets or any of its Subsidiaries the Assumed Liabilities have been timely filed, filed and all those such Tax Returns are true, correct accurate and complete in all respects. All material respectsTaxes required to be paid with respect to the Transferred Assets or the Assumed Liabilities (whether or not shown as due on such Tax Returns) have been timely paid in full. Neither Seller is the beneficiary of any extension of time within which to file any Tax Return with respect to the Transferred Assets or the Assumed Liabilities.
(b) No claim has ever been made by a Governmental Authority in a jurisdiction in which either Seller does not file a Tax Return of a particular type that any Seller is or may be subject to Tax of such type by that jurisdiction with respect to the Transferred Assets and the Assumed Liabilities.
(c) All material There are no liens for Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except of the Transferred Assets (other than liens for those Taxes not yet due and payable or being contested in good faith and by appropriate procedures, and, in each case, for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessspecifically established).
(d) Except as disclosed No Proceeding in Section 6.7(d) respect of Taxes is in progress or pending that relates to the Clearwire Disclosure ScheduleTransferred Assets or the Assumed Liabilities, there is and no currently pending audit or administrative or judicial proceeding with respect such Proceeding has been threatened against Sellers in writing (or, to Taxes the Knowledge of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSellers, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesotherwise).
(e) Clearwire has no Knowledge of No deficiencies for any proposed Taxes have been proposed, asserted, threatened or threatened Tax claims or assessments assessed against by any Taxing Authority with respect to Clearwire the Transferred Assets or any of its Subsidiaries thatthe Assumed Liabilities that have not been paid, if upheld, would, individually resolved or settled in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectfull.
(f) Except as disclosed in Section 6.7(f) Sellers have complied with all Laws relating to the payment and withholding of the Clearwire Disclosure ScheduleTaxes, Clearwire and each of its Subsidiaries have duly and timely withheld and paid over to the relevant appropriate Taxing Authorities Authority all Taxes amounts required to have been be so withheld and paid under all such Laws, in connection with payments each case, to employees, independent contractors, creditors, shareholders the extent related to the Transferred Assets or other third partiesthe Assumed Liabilities.
(g) Neither Clearwire nor any of its Subsidiaries Sellers have collected all material sales and use taxes required to be collected, and has entered intoremitted such amounts to the appropriate Taxing Authority, or otherwise participated (directly have been furnished properly completed exemption certificates, to the extent relating to the Transferred Assets or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyAssumed Liabilities.
(h) Except as set forth Sellers have complied in Section 6.7(h) of all material respects with all information reporting and record-keeping requirements with respect to the Clearwire Disclosure ScheduleTransferred Assets and the Assumed Liabilities required by any U.S. federal, each Subsidiary of Clearwire is either (x) treated as a partnership state, local or (y) disregarded as an entity separate from its owner, for non-U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Tax Law.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Sellers have no material Liability under any escheat or any of its Subsidiaries of income abandoned or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, unclaimed property laws with respect to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Transferred Assets.
(j) No Seller (or other Person treated as selling assets hereunder) is not a “United States Person” within the meaning of Code Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D7701(a)(30).
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All federal and state Tax Returns and all other material Tax Returns that were or are required to be filed on or before the Closing Date by Clearwire Parent or any of its Subsidiaries have been or will be timely filedfiled on or before the Closing Date, and all those such Tax Returns are or will be true, correct and complete in all material respects.
respects and were or will be prepared in substantial compliance with all Applicable Laws; (cii) All material all Taxes owed due and owing by Clearwire and Parent or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to Parent's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by Parent to Parent and adequately reserved for in Parent Financial Statements. Neither Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(b) No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to Parent or any of its Subsidiaries. Neither Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where Parent or its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any Taxing Authority against Parent or any of its Subsidiaries. Section 4.14(b) of the Parent Disclosure Letter lists all Tax Returns filed by Parent and its Subsidiaries for taxable periods ended on or after March 31, 2012, indicates those Tax Returns that have been paidaudited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by Parent and each of its Subsidiaries for taxable periods ended on or after March 31, except 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by Parent or any of its Subsidiaries with respect to those taxable periods.
(c) There are no Liens on Parent’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for those Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in Clearwire’s accordance with GAAP in the Parent Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire .
(d) Neither Parent nor any of its Subsidiaries has incurred waived any liability (whether statute of limitations in respect of income Taxes or not due) for material Taxes since the date agreed to any extension of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding time with respect to Taxes of Clearwire an income Tax assessment or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesdeficiency.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Parent and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesThird Party.
(f) Except as listed on Section 4.14(f) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was Parent); or (B) has any liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.14(f) of the Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 4.14(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Parent or any Subsidiary is a party and that is treated as a partnership for federal income Tax purposes.
(h) Neither Clearwire Parent nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by a Taxing Authority in a jurisdiction where Parent or any Subsidiary does not file Tax Returns that Parent (or such Subsidiary) is or may be subject to taxation by that jurisdiction nor is there any factual or legal basis for any such claim.
(j) Neither Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither Parent nor any Subsidiary is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an international boycott within the meaning of Section 999 of the Code.
(m) Neither Parent nor any Subsidiary has engaged in any transaction that, as of the date hereof, is a “listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either Parent or any Subsidiary, and, except as listed on Section 4.14(n) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has entered into, obtained a private letter ruling or otherwise participated closing agreements from the IRS (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion comparable ruling from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hTaxing Authority).
(io) Except Neither Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as set forth defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 6.7(i) 542 of the Clearwire Disclosure ScheduleCode; or (C) a “passive foreign investment company” nor has Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Merger Code.
(p) Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by Articles 2, 3 and 4 of this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 4.14(q) of the Parent Disclosure Letter, there is no agreement, contract or arrangement to which Parent or any Subsidiary is a party that would, individually or collectively, result in the recognition payment of any amount that would not be deductible by NewCo reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither Parent nor any Subsidiary has been, nor will any of its Subsidiaries them be, required to include any item of income in, or gain under exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 1502 481 of the Code and the Regulations thereunder (or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(js) Section 6.7(j) of the Clearwire Disclosure sets forth, Parent and its Subsidiaries have complied in all material respectsrespects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, Parent and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the information concerning any limitations on extent required by Law, remit such unclaimed property to the ability of NewCo applicable Governmental Entity. Parent’s and each Subsidiary’s records are adequate to utilize permit a Governmental Entity or other outside auditor to confirm the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerforegoing representations.
(kt) Any liabilities All transactions for taxable years for which the statute of Clearwirelimitations is still open (including but not limited to sales of goods, with loans, and provision of services) between (i) Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by Parent (within the possible exception meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any indebtedness issued by Clearwire reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Execution Date face of Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with Sections 10.1(b)(iv)(Fthe past custom and practice of Parent and each Subsidiary in filing its Tax Returns. Since the filing of Parent Financial Statements, neither Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) Parent operates at least one significant historic business line, or 10.1(b)(iv)(Howns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d). (w) Parent has provided or otherwise made available to Parent all of this AgreementParent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of Parent or its Subsidiaries that have been received since December 31, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)2011.
Appears in 1 contract
Samples: Merger Agreement (CollabRx, Inc.)
Tax. Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed with any Governmental Authority by Clearwire or on behalf of Parent or any of its Subsidiaries have been timely filed, and filed when due (taking into account any extension of time within which to file); (ii) all those such Tax Returns are true, correct accurate and complete and have been prepared in compliance with all material respects.
applicable Laws; (ciii) All material all Taxes owed due and payable by Clearwire and Parent or any of its Subsidiaries (whether including any Taxes that are required to be collected, deducted or not shown on withheld in connection with any Tax Returnamounts paid or owing to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been paidtimely paid (or collected or withheld and remitted) to the appropriate Governmental Authority, except for those Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result accordance with GAAP in the Parent SEC Documents filed prior to the date of actions or transactions following the Execution Date permitted by this Agreement; (iv) since January 1, neither Clearwire nor 2018, no written claim has been made by any Governmental Authority in a jurisdiction where Parent or any of its Subsidiaries has incurred does not file a Tax Return of a particular type that Parent or any liability of its Subsidiaries is or may be subject to Tax, or required to file Tax Returns, of such type in that jurisdiction, other than any such claims that have been fully resolved; and (whether or not duev) for material Taxes since the date there are no Encumbrances on any of the most recent balance sheet included assets of Parent or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(b) each of Parent and its Subsidiaries has complied with all applicable Laws relating to the Clearwire Financial Statements other than withholding of Taxes and has, within the time and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(c) no outstanding written claim has been received by, and no audit, action, or proceeding is in the ordinary course progress or threatened in writing, against or with respect to Parent or any of business.its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire Parent nor any of its Subsidiaries (i) has any Liability for the Taxes of any Person (other than Parent or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) is a party to any Tax sharing, allocation or bound by any material closing agreement, offer in compromise, gain recognition indemnification agreement or arrangement (other than (w) any other agreement with any Taxing Authority or arrangement solely among Parent or any of its Subsidiaries, (x) commercial agreements or arrangements entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes, (y) the Parent Tax indemnity Sharing Agreement or (z) the Tax sharing Sharing Agreement Joinder), (iii) has received or applied for a Tax ruling or entered into a closing agreement with pursuant to Section 7121 of the Code (or any personsimilar provision of state, local or foreign law) or (iv) is, or since November 5, 2014 has been, a member of any affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (ii) has entered into other than a group the common parent of which is Parent or any waivers or extensions of the statute of limitations with respect to material Taxes.its Subsidiaries);
(e) Clearwire has no Knowledge waiver or extension of any proposed statute of limitations in respect of any Taxes or threatened Tax claims or assessments any extension of time with respect to Clearwire any Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.Subsidiaries;
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire neither Parent nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any in a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, ” within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h1.6011-4(b)(2) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).Treasury Regulations; and
(ig) Except as set forth in Section 6.7(i) of during the Clearwire Disclosure Schedule, five-year period ending on the Merger and other transactions contemplated by Articles 2, 3 and 4 date of this Agreement will not result in the recognition by NewCo or Agreement, neither Parent nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution of income stock qualifying or gain intended to qualify for tax-free treatment under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j355(a) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerCode.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Merger Agreement (Gci Liberty, Inc.)
Tax. For purposes of this Section, the term “Seller” shall be construed to refer also to each predecessor-in-interest of Seller and each other Person for whose liability for Taxes Seller has Liability. Except as set forth on Schedule 6.17:
(a) None of the assets of Clearwire Seller has filed or any of its Subsidiaries is subject caused to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material be filed on a timely basis all Tax Returns and all reports with respect to Taxes that are or were required to be filed pursuant to Applicable Requirements by Clearwire Seller or any with respect to the Business, Acquired Assets, or the income or operations of its Subsidiaries have been timely filed, and all those Seller. All Tax Returns and reports with respect to Taxes filed by Seller are true, correct and complete in all material respects.
(c) All material . Seller has timely paid, or made provision in the Interim Balance Sheet for all Taxes owed related to the Acquired Assets, Business, or the income and operations of Seller that have accrued or become due for all periods covered by Clearwire and its Subsidiaries (whether the Tax Returns, or not shown on pursuant to any Tax Return) have been paidassessment received by Seller, except for those Taxes not yet due and payable and such Taxes, if any, as are listed in Schedule 6.17(a) and are being contested in good faith and for as to which adequate reserves (determined in accordance with GAAP) have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included provided in the Clearwire Financial Statements other than in Interim Balance Sheet. Seller currently is not the ordinary course beneficiary of businessany extension of time within which to file any Tax Return related to the Business or Acquired Assets.
(db) Except as disclosed Seller has delivered or made available to Buyer copies of all Tax Returns related to the Business or Acquired Assets filed since January 1, 2006. Schedule 6.17(b) sets forth each state, county, local municipal, domestic or foreign jurisdiction or Governmental Authority in Section 6.7(d) of the Clearwire Disclosure Scheduleor with which, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire the Business or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleAcquired Assets, neither Clearwire nor any of its Subsidiaries Seller (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any personfiles, or is or has been required to file since January 1, 2006, a Tax Return, (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes is required to have been withheld and paid in connection with payments to employeesregister for any Tax purpose, independent contractors, creditors, shareholders or other third parties.
(giii) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder is or has received been since January 1, 2006 liable for any Tax on a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilitiesnexus” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).basis,
Appears in 1 contract
Tax. (a) None Except (x) as would not reasonably be expected to have a Liberty Ventures Material Adverse Effect, (y) to the extent such Taxes or Tax matters are allocable or attributable to, or otherwise relate to, the QVC Group or (z) as otherwise set forth in Section 4.11(a) of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.Liberty Disclosure Letter:
(bi) All material (A) all Tax Returns required to be filed with any Tax Authority by Clearwire or on behalf of Liberty and each of the Contributed Ventures Subsidiaries have been filed when due (taking into account any extension of its time within which to file) in accordance with all applicable Laws; (B) all such Tax Returns are accurate and complete in all respects and have been prepared in substantial compliance with all applicable Laws; (C) all Taxes due and payable by Liberty and each of the Contributed Ventures Subsidiaries have been timely filedpaid, or withheld and all those remitted, to the appropriate Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paidAuthority, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions accordance with GAAP in the Liberty SEC Documents; (D) no written claim has been made by any Tax Authority in a jurisdiction where Liberty or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its the Contributed Ventures Subsidiaries does not file a Tax Return that Liberty or any of the Contributed Ventures Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction; and (E) there are no Encumbrances on any of the assets of the Contributed Ventures Subsidiaries (or on any of the other assets that will be contributed to the Company in the Contribution) that arose in connection with any failure (or alleged failure) to pay any Tax (except for any Permitted Encumbrances);
(ii) each of Liberty and the Contributed Ventures Subsidiaries has incurred any liability (whether or not due) for material complied with all applicable Laws relating to the payment and withholding of Taxes since and has, within the date of time and the most recent balance sheet included in manner prescribed by applicable Law, withheld from and paid over to the Clearwire Financial Statements other than in the ordinary course of business.proper Taxing Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(diii) Except as disclosed (A) no outstanding written claim has been received by, and no audit, action, suit or proceeding is in Section 6.7(d) of the Clearwire Disclosure Scheduleprogress, there is no currently pending audit against or administrative or judicial proceeding with respect to Taxes of Clearwire Liberty or any of its Subsidiaries. Except as disclosed the Contributed Ventures Subsidiaries in Section 6.7(drespect of any Tax; and (B) all deficiencies, assessments or proposed adjustments asserted against Liberty or any of the Clearwire Disclosure ScheduleContributed Ventures Subsidiaries by any Tax Authority have been paid or fully and finally settled;
(iv) none of the Contributed Ventures Subsidiaries (A) is or has been a member of an affiliated group (within the meaning of Section 1504 of the Code) filing a consolidated federal income Tax Return, neither Clearwire nor other than an affiliated group the common parent of which is or was Liberty (a “Liberty Affiliated Group”), (B) is or has been a member of any affiliated, combined, consolidated, unitary or similar group for state, local or foreign Tax purposes other than a group the common parent of which is Liberty or any of its Subsidiaries (ia “Liberty Combined Group”) or (C) has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Law) or as a transferee or successor, except for such liability arising from membership in a Liberty Affiliated Group or a Liberty Combined Group;
(v) no waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment or deficiency is in effect for Liberty or any of the Contributed Ventures Subsidiaries; and
(vi) none of Liberty or any of the Contributed Ventures Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(b) None of the Contributed Ventures Subsidiaries is a party to or bound by any material closing advance pricing agreement, offer in compromise, gain recognition closing agreement or any other agreement or ruling relating to Taxes with any Taxing Tax Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations that will remain in effect with respect to material Taxesthe Contributed Ventures Subsidiaries after the Contribution Closing.
(ec) Clearwire None of the Contributed Ventures Subsidiaries is a party to, or has no Knowledge of any proposed liability under, any Tax Sharing Agreement (other than the Split-Off Tax Sharing Agreement or threatened the Liberty Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectSharing Policies).
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(gd) Neither Clearwire Liberty nor any of its Subsidiaries has entered intotaken any action or knows of any fact, agreement, plan or otherwise participated other circumstance that could reasonably be expected to preclude (directly i) the Company Reclassification or indirectly) in, any the Auto Conversion from qualifying as a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, reorganization” within the meaning of Sections 6011, 6111 or 6112 Section 368(a) of the Code or (ii) the Contribution and the Treasury Regulations thereunder or has received a written opinion Split-Off, taken together, from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) being treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(btax-free transaction under Sections 368(a)(1)(D), Section 1.1(c) 355 and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) 361 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Code.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Liberty Interactive Corp)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, filed by SAFE and SAFE SG with the competent Tax Authority and/or Governmental Authority and all those such Tax Returns returns are true, correct and complete in any material respect pursuant to and in accordance with the applicable Laws.
(b) All Taxes which were due under the Tax returns referred to in the preceding paragraph (whether or not shown to be due on any such Tax returns) have been duly and timely paid, deducted or withheld, by SAFE and SAFE SG, or adequate provisions have been created and accounted for in the relevant SAFE Financials. All Taxes which are not yet due and payable but which relate to periods ending on or before the Closing have been fully and adequately provided for in all material respectsrespects in the books and records of SAFE and SAFE SG.
(c) All material SAFE and SAFE SG have deducted, withheld or collected all amounts required to be respectively deducted, withheld or collected by them on account of Taxes owed including all amounts required to be deducted, withheld or collected in respect of amounts deemed to be paid respectively by Clearwire them, and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following remitted all such amounts to the Execution Date permitted appropriate Governmental Entity when required by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessLaw to do so.
(d) Except as disclosed in Section 6.7(d) There are no Encumbrances for Taxes upon the assets or properties of the Clearwire Disclosure ScheduleSAFE or SAFE SG, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes other than Encumbrances created solely by operation of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesLaw.
(e) Clearwire has SAFE and SAFE SG have not been served with any written notice of assessment or other written notices concerning the payment of Taxes, and to the LR Knowledge there are no Knowledge of any proposed audits, examinations, investigations, claims, disputes or other proceedings pending or threatened Tax claims or assessments in writing with respect to Clearwire any Taxes or any Tax returns of its Subsidiaries that, if upheld, would, individually SAFE or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectSAFE SG.
(f) Except All the extraordinary transactions involving SAFE and/or SAFE SG (including, without limitation, any acquisition or sale of interests and/or businesses as disclosed in Section 6.7(fa going concern) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld performed in compliance with Tax Laws and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesall the applicable Taxes have been duly and timely paid.
(g) Neither Clearwire nor any SAFE and SAFE SG are and have been resident for tax purposes solely in their jurisdiction of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code incorporation and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythey do not have permanent establishment in other jurisdictions.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership Any transaction between SAFE Group Companies or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or between any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code LR Group Companies and the Regulations thereunder (SAFE Group Companies or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date SAFE Group Companies and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed their Related Parties have been priced at arm’s length for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)transfer pricing purposes.
Appears in 1 contract
Tax. (a) None 11.1 The Sellers and the Purchaser shall, with effect from Closing, comply with the provisions of the assets Tax Covenant
11.2 All sums payable under this agreement shall be paid free and clear of Clearwire all deductions or withholdings whatsoever save only as provided in this agreement or as may be required by law.
11.3 If any deduction or withholding is required by law from any payment in respect of its Subsidiaries is subject a Purchaser Obligation or a Seller Obligation then, except in relation to interest, the person making the payment shall be obliged to pay the other person such additional sum as will, after such deduction or withholding has been made, leave the other person with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
11.4 If any tax authority brings into charge to tax any sum paid by a person to any material Encumbrance for Taxesother person under this agreement in respect of a Purchaser Obligation or a Seller Obligation, then, except for liens for Taxes in relation to interest, the amount so payable shall be grossed up by such amount as will ensure that, after payment of the tax so charged, there will be left a sum equal to the amount that would otherwise have been payable had the sum in question not yet due and payablebeen so charged to tax.
11.5 If any person receiving payment (ba Recipient) All material Tax Returns required under this agreement in respect of a Purchaser Obligation or a Seller Obligation receives a credit for, refund of or relief from any tax or other monies payable by it or similar benefit by reason of any deduction or withholding for or on account of tax or by reason of any tax charged in respect of which there is a gross up under clause 11.4, then it shall reimburse to be filed the other relevant persons such part of such additional payments paid to it pursuant to clause 11.3 or clause 11.4 by Clearwire such other persons as the Recipient, acting reasonably, certifies to the other persons will leave it (after such reimbursement) in no better or any of its Subsidiaries worse position than it would have been timely filed, and all those Tax Returns are true, correct and complete in all material respectsif no deduction or withholding had been required or no tax charge had arisen or (where applicable) if the matter giving rise to the payment had not arisen.
11.6 If any party shall have assigned the benefit in whole or in part of this agreement in accordance with the provisions of clause 21, the liability of any other person to the other person under clauses 11.3 and 11.4 shall be limited to that (cif any) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) which it would have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businesshad no such assignment taken place.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). 11.7 For the avoidance of doubt, Clearwire Transaction Tax Items clauses 11.3 to 11.6 shall not include apply to the Final Price for any items Set of income or gain of Sprint Shares, any Financial Adjustments or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)payment pursuant to clause 7.
11.8 All sums payable under this agreement are (junless expressly stated otherwise) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception exclusive of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)applicable VAT.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Business (Harsco Corp)