Taxes and Tax Matters. (a) The Company and each Company Subsidiary have paid, or reserved in accordance with GAAP, all Taxes due and payable by any of them for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return. (b) The Company and each Company Subsidiary have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company or any Company Subsidiary is the beneficiary of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances. (c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. (d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit. (e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns. (f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (Titan Corp)
Taxes and Tax Matters. (a) All material Tax Returns required to have been filed by the Company or any of its Subsidiaries have been duly and timely filed (taking into account applicable extensions) with the appropriate Taxing Authorities and all such Tax Returns were true, correct and complete in all material respects. The Company and each Company Subsidiary all of its Subsidiaries have paid (or caused to be paid, or reserved in accordance with GAAP, ) all material Taxes due and payable that were required to have been paid by any of them for or with respect to all periods up to and including the date hereof under applicable Law (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax ReturnReturns).
(b) All material Taxes not yet due and payable under applicable Law as of the day immediately prior to the Closing will be adequately reflected as a liability in computing Closing Date Net Working Capital or Closing Date Indebtedness in accordance with GAAP and this Agreement.
(c) There is no Action pending or, to the Knowledge of the Company/Seller, threatened in respect of any material Taxes for which the Company or any of its Subsidiaries is or may become liable, nor has any deficiency for any such material Taxes been proposed, asserted or, to the Knowledge of the Company/Seller, threatened which has not been fully resolved.
(d) There are no rulings, closing agreements, or similar agreements with any Taxing Authority the terms of which would have a material effect on the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of material Taxes, Tax indemnity agreement or similar agreements with respect to material Taxes, except for any such agreement (i) entered into in the ordinary course of business and the principal subject of which is not Taxes or (ii) that is exclusively between or among the Company and any of its Subsidiaries or is described in Section 6.7(d).
(f) The Company and each Company Subsidiary its Subsidiaries have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete complied in all material respects. None respects with all Laws relating to the withholding of Taxes.
(g) Neither the Company or nor any Company Subsidiary of its Subsidiaries (i) is currently the beneficiary of any extension of time within which to file any material Tax Return Return, except extensions of times that are automatically granted and applied for in the ordinary course of business, (ii) has waived or extended any statute of limitations in respect of material Taxes, or (iii) has agreed to any extension of time with respect to any material Tax assessment or deficiency, in each case, which has not yet been filed. will have a continuing effect after the Closing.
(h) No written claim has ever been made (which has not been satisfactorily resolved) by an authority Taxing Authority in a any jurisdiction where the Company and its Subsidiaries do not file Tax Returns has made a claim in writing that the Company or any Company Subsidiary does not file Company Tax Returns that any one of them its Subsidiaries is or may be subject to taxation by by, or file Tax Returns in, that jurisdiction. None , nor has, to the Knowledge of the Company/Seller, any Taxing Authority threatened such a claim in writing (in each case, which remains unresolved).
(i) There are no Liens for Taxes upon any assets of the Company or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax its Subsidiaries except for Permitted EncumbrancesLiens.
(cj) Neither the Company and each Company Subsidiary nor any of its Subsidiaries has withheld and paid all material Taxes participated in a “listed transaction” required to have been withheld and paid in connection with amounts paid be disclosed pursuant to Treasury Regulations Section 1.6011-4(b) or owing to any employee, independent contractor, creditor, stockholder or other third partypredecessor thereof.
(dk) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of Neither the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods nor any of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company its Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codea consolidated, filing a consolidated federal income affiliated, combined, unitary or similar Tax Return group (other than a group the common parent of which was is the Company) or (B) has any Liability liability for the Taxes of any Person person (other than any of Companythe Company and its Subsidiaries) under Treas. Reg. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign non-U.S. law), as a transferee or successor, by contract Contract, or otherwiseotherwise (other than agreements whose principal purpose is not related to Tax or which are described in Section 3.17(e)(ii)).
(l) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending prior to the Closing Date; (B) installment sale or open transaction disposition made prior to the Closing Date; (C) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. law) executed prior to the Closing Date; (D) prepaid amount received or deferred revenue realized prior to the Closing Date; (E) any intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state or local Law); (F) any Contagion Event Measures; or (G) any amount received by the Company or any of its Subsidiaries prior to the Closing Date.
(m) During the two-year period ending on the date hereof, each of the Company and any of its Subsidiaries has not been a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code.
(n) Neither the Company nor any of its Subsidiaries has any material liability under any abandoned or unclaimed property, escheat or similar Laws, and each of the Company and any of its Subsidiaries has satisfied all material reporting and payment obligations pursuant to such Laws.
Appears in 2 contracts
Samples: Contribution Agreement (Victory Capital Holdings, Inc.), Contribution Agreement (Victory Capital Holdings, Inc.)
Taxes and Tax Matters. Except as set forth in Section 3.17 of the Seller Disclosure Schedule:
(a) The Company and Each Company, each Company Subsidiary have paidof each Company, or reserved in accordance with GAAPand, all Taxes due and payable by any of them for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed)Transferred Assets, whether or not shown on any Tax Return.
(b) The Company Seller and each Company Subsidiary have of its Affiliates has (i) timely filed on a timely basis all material Company Tax Returns that it was required to file. All , or had such Company Tax Returns required to be filed on its behalf as part of a consolidated, combined or unitary Tax Return timely filed, which Tax Returns were accurate true, correct and complete in all material respects. None , (ii) paid all Taxes required to be paid by it with respect to such Tax Returns (except for Taxes being contested in good faith by appropriate proceedings); and (iii) timely withheld and remitted to the proper Taxing Authority all material Taxes required to be withheld by it.
(b) No Company and no Subsidiary of Company or any Company has been a member of an Affiliated Group filing a consolidated federal Income Tax Return other than a Merck Affiliated Group.
(c) No Company, no Subsidiary is of any Company, and, with respect to the beneficiary Transferred Assets, none of Seller or its Affiliates has waived, nor had waived on its behalf, any statute of limitations in respect of material Taxes or agreed to any extension of time within which with respect to file any a material Tax Return which has not yet been filed. assessment or deficiency.
(d) No written material unresolved claim has ever been made (which has not been satisfactorily resolved) by an authority a Taxing Authority in a jurisdiction where Company any Company, any Subsidiary of any Company, or, with respect to the Transferred Assets, Seller or any Company Subsidiary of its Affiliates does not file Company Tax Returns that any one of them it is or may be subject to taxation by that jurisdiction. None of Company .
(e) No Tax audits or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes proceedings are pending or agreed to any currently effective extension of time being conducted with respect to any Company, any Subsidiary of any Company, or, with respect to the Transferred Assets, Seller or any of its Affiliates, nor, to the Knowledge of Seller, has any such audit or proceeding been threatened by a Taxing Authority.
(f) No Company and no Subsidiary of any Company is a party to or bound by any Tax assessment allocation or deficiencysharing agreement other than any Tax allocation or sharing provisions contained in commercial contracts not primarily relating to Taxes and entered into in the ordinary course.
(g) No Company and no Subsidiary of any Company has engaged in any “listed transaction” or “transaction of interest” within the meaning of Section 1.6011-4(b)(2) and (6) of the Treasury Regulations and each Company and each Subsidiary of a Company has properly disclosed (i) all reportable transactions that it has entered into, if any, as required by Section 1.6011-4 of the Treasury Regulations; and (ii) all uncertain tax positions reflected in its financial accounting tax accrual workpapers, if any, as required by Section 1.6012-2(a)(4) of the Treasury Regulations. Furthermore, all disclosures described above, if any, have been made available for inspection by Buyer.
(h) No Company and no Subsidiary of any Company (other than a Section 338(h)(10) Company) will be required as a result of (i) a change in accounting method for a - 43 - taxable period beginning on or before the Closing, to include any adjustment under Section 481(c) of the Code (or any similar provisions of state, local or foreign Law) in taxable income for any Post-Closing Tax Period, or (ii) any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Tax Law), to include any item of income in or exclude any item of deduction from any Post-Closing Tax Period.
(i) There are no security interests Liens (other than Permitted Liens) on any of the assets of any Company or any Subsidiary of any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted EncumbrancesTax.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Stock and Asset Purchase Agreement (Merck & Co. Inc.)
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paid, prior to the Effective Time) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up applicable material Taxes. No material penalties or other charges are or will become due with respect to and including any such Company Tax Returns as the result of the late filing thereof. All such Company Tax Returns are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. The Company and the Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing authority in connection with any such Company Tax Returns (without regard to whether or not such Taxes are shown as due on any Company Tax Returns); or were disputed)(ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes, whether or not shown on such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Tax ReturnSubsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) The Neither the Company nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Effective Time will have any liability for Taxes payable for or with respect to any periods prior to and each including the Effective Time in excess of the amounts actually paid prior to the Effective Time or reserved for in the Financial Statements, except for any Taxes due in connection with the Merger or incurred in the Ordinary Course of Business subsequent to the date of the latest Financial Statement.
(c) Except as set forth in Section 3.17(c) of the Company Subsidiary have filed on a timely basis Disclosure Schedule, all material Company Tax Returns that it was required have been examined by the relevant Taxing authorities, or closed without audit by applicable Law, and all deficiencies proposed as a result of such examinations have been paid, settled or reserved for in the Financial Statements, for all taxable years prior to fileand including the taxable year ended December 31, 1997. All such Except as set forth in Section 3.17(c) of the Company Tax Returns were accurate and complete in all material respects. None Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the knowledge of the Company or any Company Subsidiary is the beneficiary Subsidiary, threatened in respect of any extension of time within Taxes for which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has given consented to any currently effective waiver waivers or extensions of any statute of limitations in with respect of Taxes or agreed to any currently effective taxable year of the Company or any Subsidiary. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no Agreement, waiver or consent providing for an extension of time with respect to a Tax the assessment or deficiency. There are no security interests on collection of any of Taxes against the assets of Company or any Subsidiary, and no power of attorney granted by the Company or any Subsidiary that arose in connection with any failure (or alleged failure) respect to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has furnished to Pubco true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditlimitations has not expired.
(e) The unpaid Taxes Section 3.17(e) of the Company and any Company Subsidiary Disclosure Schedule sets forth (i) did not, as of the date of any financial statements of Company and all federal Tax elections that currently are in effect with respect to the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreementor any Subsidiary, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed all elections for purposes of foreign, state or local Taxes and all consents or Agreements for purposes of federal, foreign, state or local Taxes in each case that reserve as adjusted reasonably could be expected to affect or be binding upon the Surviving Corporation or any Subsidiary or their respective Assets or operations after the Effective Time. Section 3.17(e) of the Company Disclosure Schedule sets forth all changes in accounting methods for Tax purposes at any time made, agreed to, requested or required with respect to the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsof the Subsidiaries.
(f) None Except as set forth in Section 3.17(f) of the Company Disclosure Schedule, neither the Company nor any Subsidiary (i) is or has ever been a partner in a partnership or an owner of an interest in an entity treated as a partnership for federal income Tax purposes; (ii) has executed or filed with the IRS any Company Subsidiary has filed a consent under to have the provisions of Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Code apply to it; (iii) is subject to Section 897(c)(2) 999 of the Code during the applicable period specified Code; (iv) is a passive foreign investment company as defined in Section 897(c)(1)(A)(ii1296(a) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company ; or any Company Subsidiary (v) is a party to any Tax an Agreement relating to the sharing, allocation or sharing agreement. None of Company payment of, or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codeindemnity for, filing a consolidated federal income Tax Return Taxes (other than a group an Agreement the common parent only parties to which are the Company and the Subsidiaries).
(g) The Company has complied in all material respects with all rules and regulations relating to the withholding of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwiseTaxes.
Appears in 2 contracts
Samples: Merger Agreement (McLeodusa Inc), Merger Agreement (McLeodusa Inc)
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paid, prior to the Effective Time) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up applicable material Taxes. No material penalties or other charges are or will become due with respect to and including any such Company Tax Returns as the result of the late filing thereof. All such Company Tax Returns are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. The Company and the Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing authority in connection with any such Company Tax Returns (without regard to whether or not such Taxes are shown as due on any Company Tax Returns); or were disputed)(ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes, whether or not shown on such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Tax ReturnSubsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) The Neither the Company nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Effective Time will have any liability for Taxes payable for or with respect to any periods prior to and each including the Effective Time in excess of the amounts actually paid prior to the Effective Time or reserved for in the Financial Statements, except for any Taxes due in connection with the Merger or incurred in the Ordinary Course of Business subsequent to the date of the latest Financial Statement.
(c) Except as set forth in Section 3.17(c) of the Company Subsidiary have filed on a timely basis Disclosure Schedule, all material Company Tax Returns that it was required have been examined by the relevant Taxing authorities, or closed without audit by applicable Law, and all deficiencies proposed as a result of such examinations have been paid, settled or reserved for in the Financial Statements, for all taxable years prior to fileand including the taxable year ended December 31, 1997. All such Except as set forth in Section 3.17(c) of the Company Tax Returns were accurate and complete in all material respects. None Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the knowledge of the Company or any Company Subsidiary is the beneficiary Subsidiary, threatened in respect of any extension of time within Taxes for which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has given consented to any currently effective waiver waivers or extensions of any statute of limitations in with respect of Taxes or agreed to any currently effective taxable year of the Company or any Subsidiary. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no Agreement, waiver or consent providing for an extension of time with respect to a Tax the assessment or deficiency. There are no security interests on collection of any of Taxes against the assets of Company or any Subsidiary, and no power of attorney granted by the Company or any Subsidiary that arose in connection with any failure (or alleged failure) respect to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has furnished to XxXxxx true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditlimitations has not expired.
(e) The unpaid Taxes Section 3.17(e) of the Company and any Company Subsidiary Disclosure Schedule sets forth (i) did not, as of the date of any financial statements of Company and all federal Tax elections that currently are in effect with respect to the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreementor any Subsidiary, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed all elections for purposes of foreign, state or local Taxes and all consents or Agreements for purposes of federal, foreign, state or local Taxes in each case that reserve as adjusted reasonably could be expected to affect or be binding upon the Surviving Corporation or any Subsidiary or their respective Assets or operations after the Effective Time. Section 3.17(e) of the Company Disclosure Schedule sets forth all changes in accounting methods for Tax purposes at any time made, agreed to, requested or required with respect to the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsof the Subsidiaries.
(f) None Except as set forth in Section 3.17(f) of the Company Disclosure Schedule, neither the Company nor any Subsidiary (i) is or has ever been a partner in a partnership or an owner of an interest in an entity treated as a partnership for federal income Tax purposes; (ii) has executed or filed with the IRS any Company Subsidiary has filed a consent under to have the provisions of Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Code apply to it; (iii) is subject to Section 897(c)(2) 999 of the Code during the applicable period specified Code; (iv) is a passive foreign investment company as defined in Section 897(c)(1)(A)(ii1296(a) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company ; or any Company Subsidiary (v) is a party to any Tax an Agreement relating to the sharing, allocation or sharing agreement. None of Company payment of, or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codeindemnity for, filing a consolidated federal income Tax Return Taxes (other than a group an Agreement the common parent only parties to which are the Company and the Subsidiaries).
(g) The Company has complied in all material respects with all rules and regulations relating to the withholding of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwiseTaxes.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McLeodusa Inc), Agreement and Plan of Merger (McLeodusa Inc)
Taxes and Tax Matters. (a) The Company and each Company Subsidiary have paid, or reserved in accordance with GAAP, has paid all Taxes due and payable by any of them it for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) The Company and each Company Subsidiary have has filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company or any Company Subsidiary is not the beneficiary of any extension of time within which to file any Tax Return which has not yet been filedReturn. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them it is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has not given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted EncumbrancesTax.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has no knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 19961995; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Purchase Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their its Company Tax Returns.
(f) None of Company or any Company Subsidiary has not filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None The Company has not made any payments, is not obligated to make any payments and is not 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. Company or any Company Subsidiary has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is not a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has not been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or and (B) has any no Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.
(g) Section 3.16 of the Company Disclosure Letter sets forth the following information with respect to Company as of the date hereof: (i) the tax basis of Company in its assets; (ii) the amount of any net operating loss, net capital loss, unused investment, foreign tax or other credit, or excess charitable contribution allocable to Company; and (iii) the amount of any deferred gain or loss allocable to Company arising out of any "deferred intercompany transaction" as defined in Treas. Reg. Section 1.1502-13(a)(2).
(h) Company (and any predecessor of Company) has been a validly electing S corporation within the meaning of Code Sections 1361 and 1362 at all times during its existence and Company will be an S corporation up to and including the Closing Date. With respect to all states which for state Tax purposes allow a corporation to be treated as an S corporation or similar entity entitled to special Tax treatment, all elections for such treatment have been properly and validly maintained at all times with all applicable qualifications and filing procedures for such treatment.
(i) Except as set forth in Section 3.16 of the Company Disclosure Letter, Company will not be liable for any Tax under Section 1374 of the Code with respect to the transactions contemplated by this Agreement. Except as set forth on Section 3.16 of the Company Disclosure Letter, Company has never (i) acquired assets from another Person in a transaction in which the Company's Tax basis for the acquired assets was determined in whole or in part by reference to the Tax basis of the acquired assets (or any other property) in the hands of the transferor or (ii) acquired the stock of any other corporation that is a qualified subchapter S subsidiary.
Appears in 1 contract
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paidprior to the Effective Time) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries since January 1, 1989 at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up applicable material Taxes. No material penalties or other charges are or will become due with respect to and including any such Company Tax Returns as the result of the late filing thereof. All such Company Tax Returns are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. The Company and the Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing authority in connection with any such Company Tax Returns (without regard to whether or not such Taxes are shown as due on such Company Tax Returns); or were disputed)(ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes, whether or not shown on such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Tax ReturnSubsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) The Neither the Company nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Effective Time will have any liability for Taxes payable for or with respect to any periods prior to and each including the Effective Time in excess of the amounts actually paid prior to the Effective Time or reserved for in the Financial Statements, except for any Taxes due in connection with the Merger.
(c) Except as set forth in Section 3.17(c) of the Company Subsidiary have filed on a timely basis Disclosure Schedule, all material federal, Illinois, Indiana and Missouri Company Tax Returns that it was required have been examined by the relevant Taxing authorities, or closed without audit by applicable Law, and all deficiencies proposed as a result of such examinations have been paid or settled, for all taxable years prior to fileand including the taxable year ended December 31, 1992. All such Except as set forth in Section 3.17(c) of the Company Tax Returns were accurate and complete in all material respects. None Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the knowledge of the Company or any Company Subsidiary is the beneficiary Subsidiary, threatened in respect of any extension of time within Taxes for which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has given consented to any currently effective waiver waivers or extensions of any statute of limitations in with respect of Taxes or agreed to any currently effective taxable year of the Company or any Subsidiary. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no Agreement, waiver or consent providing for an extension of time with respect to a Tax the assessment or deficiency. There are no security interests on collection of any of Taxes against the assets of Company or any Subsidiary, and no power of attorney granted by the Company or any Subsidiary that arose in connection with any failure (or alleged failure) respect to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has furnished to Acquiror true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditlimitations has not expired.
(e) The unpaid Taxes Section 3.17(e) of the Company and any Company Subsidiary Disclosure Schedule sets forth (i) did not, as of the date of any financial statements of Company and all federal Tax elections that currently are in effect with respect to the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreementor any Subsidiary, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed all elections for purposes of foreign, state or local Taxes and all consents or Agreements for purposes of federal, foreign, state or local Taxes in each case that reserve as adjusted reasonably could be expected to affect or be binding upon the Surviving Corporation or any Subsidiary or their respective Assets or operations after the Effective Time. Section 3.17(e) of the Company Disclosure Schedule sets forth all changes in accounting methods for Tax purposes made, agreed to, requested or required with respect to the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsof the Subsidiaries since January 1, 1994.
(f) None Except as set forth in Section 3.17(f) of the Company Disclosure Schedule, neither the Company nor any Subsidiary (i) is or has, since January 1, 1989, been a partner in a partnership or an owner of an interest in an entity treated as a partnership for federal income Tax purposes; (ii) since January 1, 1989, has executed or filed with the IRS any Company Subsidiary has filed a consent under to have the provisions of Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Code apply to it; (iii) is subject to Section 897(c)(2) 999 of the Code during the applicable period specified Code; (iv) is a passive foreign investment company as defined in Section 897(c)(1)(A)(ii1296(a) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company ; or any Company Subsidiary (v) is a party to any Tax an Agreement relating to the sharing, allocation or sharing agreement. None payment of, or indemnity for, Taxes (other than an Agreement the only parties to which are the Company and the Subsidiaries).
(g) The Company and the Subsidiaries have no knowledge of, and believe that there does not exist, any plan or intention on the part of the Company Shareholders (a "Shareholder Plan") to engage in a sale, exchange, ---------------- transfer, distribution (including, without limitation, a distribution by a partnership to its partners or by a corporation to its shareholders), pledge, disposition or any other transaction which results in a reduction in the risk of ownership or a direct or indirect disposition (a "Sale") of a number of shares ---- of Acquiror Common Stock to be issued to such Company Subsidiary Shareholders in the Merger, which would reduce the Company Shareholders' ownership of Acquiror Common Stock to a number of shares having an aggregate fair market value, as of the Effective Time, of less than forty-five percent (A) has been a member of an "affiliated group," as defined in Section 1504(a45%) of the Codeaggregate fair market value, filing immediately prior to the Merger, of all outstanding shares of the Company Capital Stock. For purposes of this paragraph, (i) shares of Company Capital Stock with respect to which a consolidated federal income Tax Return (Company Shareholder receives consideration in the Merger other than Acquiror Common Stock (including, without limitation, cash received pursuant to the exercise of dissenters' rights or in lieu of fractional shares of Acquiror Common Stock) and/or (ii) shares of Company Capital Stock with respect to which a group Sale occurs prior to and in contemplation of the common parent Merger, shall be considered shares of which was Company) or (B) has any Liability outstanding Company Capital Stock exchanged for Acquiror Common Stock in the Taxes Merger and then disposed of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as pursuant to a transferee or successor, by contract or otherwiseShareholder Plan.
Appears in 1 contract
Taxes and Tax Matters. Except as set forth in SCHEDULE 2.18:
(a) The Company all material returns (including income, franchise, sales and each Company Subsidiary have paiduse, unemployment compensation, excise, severance, property, gross receipts, profits, payroll and withholding tax returns and information returns) and reports (collectively, the "Tax Returns") of or reserved relating to any foreign, federal, state or local tax, assessment, levy, impost, duty, withholding, estimated payment or other similar governmental charge (collectively, together with any penalties, additions to tax, fines, interest and similar charges thereon or related thereto, the "Taxes") that are required to be filed on or before the Effective Date, subject to any allowable extension periods and subject to any matters that are being contested in accordance with GAAPgood faith by Steel, all Taxes due and payable by any for, by, on behalf of them for or with respect to all periods up Steel, including, but not limited to, those relating to and including the date hereof income, business, operations, or property of Steel (without regard to whether on a separate, consolidated, affiliated, combined, unitary or not such Taxes are or were disputedany other basis), whether have been or not will be timely filed with the appropriate foreign, federal, state and local authorities, and all Taxes shown to be due and payable on any such Tax Return.Returns or related to such Tax Returns have been or will be paid in full on or before the Effective Date;
(b) The Company and each Company Subsidiary have filed on a timely basis all material Company such Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete the information and data contained therein have been or will be properly and accurately compiled and completed in all material respects. None , fairly present or will fairly present the information purported to be shown therein in all material respects, and reflect or will reflect all liabilities for Taxes for the periods covered by such Tax Returns in all material respects;
(c) none of Company such Tax Returns are under audit or, to the best knowledge of Steel, are under examination and there are no agreements, waivers or any Company Subsidiary is the beneficiary of any other arrangements providing for an extension of time within which with respect to file the assessment or collection of any Tax Return which or deficiency of any nature against Steel with respect to any such Tax Return;
(d) all Taxes assessed and all material Taxes due and owing from or against Steel on or before the Effective Date (including, but not limited to, ad valorem Taxes relating to any property of Steel) have been or will be timely paid in full on or before the Effective Date;
(e) all material withholding Tax, Tax deposit and estimated Tax payment requirements imposed on Steel for any and all periods ending on or before the Effective Date, or through and including the Effective Date for periods that have not ended on or before the Effective Date, have been or will be timely satisfied in full on or before the Effective Date or reserves adequate for the payment of such withholding, deposit and estimated Taxes have been or will be established in the financial statements of Steel on or before the Effective Date;
(f) pursuant to the Merger, at least ninety percent (90%) of the fair market value of the net assets and at least seventy percent (70%) of the fair market value of the gross assets held by Steel immediately prior to the Merger will continue to be held by the Surviving Corporation immediately subsequent to the Merger;
(g) except for waivers or extensions which, by their terms, have lapsed, Steel has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has given any currently effective waiver of waived any statute of limitations in respect of Taxes taxes or agreed to any currently effective extension of time with respect to a Tax tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company deficiency and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary Steel has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax tax within the meaning of Code section 6662. Steel is not a party to any tax allocation or sharing agreement;
(h) the liabilities of Steel assumed by Sub and the liabilities to which the transferred assets of Steel are subject were incurred by Steel in the ordinary course of business;
(i) Steel is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a368(a)(3)(a) of the Code, filing a consolidated federal income Tax Return ; and
(other than a group j) at least fifty percent (50%) the common parent fair market value of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwiseConsideration will be in EHI Common Stock.
Appears in 1 contract
Taxes and Tax Matters. (a) The Company All income Tax Returns and each Company Subsidiary have paidall other material Tax Returns required to be filed by Holdings, or reserved in accordance with GAAP, all Taxes due and payable by any of them for its Subsidiaries or with respect to any Buyer Professional Association have been duly and timely filed (taking into account applicable extensions) and all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) The Company and each Company Subsidiary have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate are true, correct and complete in all material respects. None Holdings, each of Company its Subsidiaries and the Buyer Professional Associations have paid (or caused to be paid) all material Taxes that are due and payable (other than Taxes that are being contested in good faith and are reserved for in accordance with GAAP in the Buyer Financial Statements).
(b) As of the date of this Agreement, there is no material action, suit, proceeding, audit, investigation or claim pending or, to the Knowledge of Buyer, threatened in writing in respect of any Taxes for which Holdings, any Subsidiary or any Company Subsidiary is the beneficiary of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them Buyer Professional Association is or may be become liable, nor has any material deficiency or claim for any such Taxes been proposed, asserted or, to the Knowledge of Buyer, threatened in writing.
(c) Except as set forth in Section 5.17(c) of the Buyer Disclosure Schedule, neither Holdings nor any of its Subsidiaries nor any Buyer Professional Association is subject to taxation any Contract or agreement relating to the sharing, allocation or payment of, or indemnity for, any Taxes. For the purposes of this Section 5.17(c), the following Contracts shall be disregarded: (i) commercially reasonable Contracts not primarily related to Taxes providing for the allocation or payment of real property Taxes attributable to real property leased or occupied by that jurisdiction. None Holdings or its Subsidiaries and (ii) commercially reasonable Contracts not primarily related to Taxes providing for the allocation or payment of Company personal property Taxes, sales or use Taxes or value added Taxes with respect to personal property leased, used, owned, purchased or sold in the ordinary course of business.
(d) Holdings, each of its Subsidiaries and each Buyer Professional Association have complied in all material respects with all rules and regulations relating to the withholding of Taxes.
(e) There are no liens for Taxes upon any of the assets of Holdings or any Company Subsidiary of its Subsidiaries or any Buyer Professional Association other than Buyer Permitted Liens.
(f) Neither Holdings nor any of its Subsidiaries nor any Buyer Professional Association has given any currently effective waiver of waived any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any deficiency (other than as a result of extending the assets due date of Company a Tax Return in the ordinary course of business), which waiver or any Company Subsidiary that arose extension is still in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbranceseffect.
(cg) Company and each Company No unresolved written claim has been made by any Taxing Authority in a jurisdiction where Holdings or any of its Subsidiaries or any Buyer Professional Association does not file Tax Returns that any such Holdings, Subsidiary has withheld and paid all material Taxes required or Buyer Professional Association is or may be subject to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partytaxation by that jurisdiction.
(dh) None Neither Holdings nor any of Company its Subsidiaries nor any Buyer Professional Association (i) has ever been a member of an affiliated group or filed or been included in a combined, consolidated or unitary income Tax Return (other than, in the case of Holdings and its Subsidiaries, any Company Subsidiary has knowledge such Tax Return of any facts Buyer Group) or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning (ii) has incurred any liability for Taxes of Company another Person under Section 1.1502-6 of the Treasury Regulations (or any Company Subsidiary either similar provision of state, local or non-U.S. Law).
(i) claimed or raised by Neither Holdings nor any authority of its Subsidiaries nor any Buyer Professional Association has engaged in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did nottransaction that, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax incomeis a “listed transaction” under Section 1.6011-4(b)(2) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax ReturnsTreasury Regulations.
(fj) None Neither Holdings nor any of Company its Subsidiaries nor any Buyer Professional Association has distributed the stock of another entity or has had its stock distributed by another entity 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 Holdings nor any of its Subsidiaries nor any Buyer Professional Association will, following the Closing, have any material liability for Taxes as a result of any (A) “closing agreement” as described in Section 7121 of the Code (or any Company Subsidiary has filed a consent comparable provision of Law in any jurisdiction) executed on or prior to the Closing Date, (B) installment sale or open transaction disposition made on or prior to the Closing Date, (C) prepaid amount received on or prior to the Closing Date, (D) election under Section 341(f108(i) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Section 897(c)(2(E) adjustment pursuant to section 481(a) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company (or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (Apredecessor provision) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign lawnon-U.S. Tax Law by reason of any change in accounting methods on or prior to the Closing Date.
(l) There are no material claims pending, or to the Knowledge of Buyer, threatened in writing against Holdings or any of its Subsidiaries under any applicable Law related to escheat, abandoned or unclaimed property.
(m) Except as set forth in Section 5.17(m) of the Buyer Disclosure Schedule, the net operating loss carryforwards for U.S. federal income tax purposes of Holdings as set forth on Section 5.17(m) of the Buyer Disclosure Schedules, are correct and are not subject to any limitation under Sections 382 or 384 of the Code, or otherwise (other than limitations incurred in connection with the transactions effected pursuant to this Agreement), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Samples: Equity Purchase and Contribution Agreement (Select Medical Corp)
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paid, prior to the Effective Time) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up applicable material Taxes. No material penalties or other charges are or will become due with respect to and including any such Company Tax Returns as the result of the late filing thereof. All such Company Tax Returns are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. The Company and the Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing authority in connection with any such Company Tax Returns (without regard to whether or not such Taxes are shown as due on any Company Tax Returns); or were disputed)(ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes, whether or not shown on such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Tax ReturnSubsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) The Neither the Company nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Effective Time will have any liability for Taxes payable for or with respect to any periods prior to and each including the Effective Time in excess of the amounts actually paid prior to the Effective Time or reserved for in the Financial Statements, except for any Taxes due in connection with the Merger or incurred in the Ordinary Course of Business subsequent to the date of the latest Financial Statement.
(c) Except as set forth in Section 3.17(c) of the Company Subsidiary have filed on a timely basis Disclosure Schedule, all material Company Tax Returns that it was required have been examined by the relevant Taxing authorities, or closed without audit by applicable Law, and all deficiencies proposed as a result of such examinations have been paid, settled or reserved for in the Financial Statements, for all taxable years prior to fileand including the taxable year ended December 31, 1997. All such Except as set forth in Section 3.17(c) of the Company Tax Returns were accurate and complete in all material respects. None Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the knowledge of the Company or any Company Subsidiary is the beneficiary Subsidiary, threatened in respect of any extension of time within Taxes for which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has given consented to any currently effective waiver waivers or extensions of any statute of limitations in with respect of Taxes or agreed to any currently effective taxable year of the Company or any Subsidiary. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no Agreement, waiver or consent providing for an extension of time with respect to a Tax the assessment or deficiency. There are no security interests on collection of any of Taxes against the assets of Company or any Subsidiary, and no power of attorney granted by the Company or any Subsidiary that arose in connection with any failure (or alleged failure) respect to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has furnished to Acquiror true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditlimitations has not expired.
(e) The unpaid Taxes Section 3.17(e) of the Company and any Company Subsidiary Disclosure Schedule sets forth (i) did not, as of the date of any financial statements of Company and all federal Tax elections that currently are in effect with respect to the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreementor any Subsidiary, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed all elections for purposes of foreign, state or local Taxes and all consents or Agreements for purposes of federal, foreign, state or local Taxes in each case that reserve as adjusted reasonably could be expected to affect or be binding upon the Surviving Corporation or any Subsidiary or their respective Assets or operations after the Effective Time. Section 3.17(e) of the Company Disclosure Schedule sets forth all changes in accounting methods for Tax purposes at any time made, agreed to, requested or required with respect to the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsof the Subsidiaries since January 1, 1996.
(f) None Except as set forth in Section 3.17(f) of the Company Disclosure Schedule, neither the Company nor any Subsidiary (i) is or has since January 1, 1991 been a partner in a partnership or an owner of an interest in an entity treated as a partnership for federal income Tax purposes; (ii) has executed or filed with the IRS any Company Subsidiary has filed a consent under to have the provisions of Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Code apply to it; (iii) is subject to Section 897(c)(2) 999 of the Code during the applicable period specified Code; (iv) is a passive foreign investment company as defined in Section 897(c)(1)(A)(ii1296(a) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company ; or any Company Subsidiary (v) is a party to any Tax an Agreement relating to the sharing, allocation or sharing agreement. None of Company payment of, or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codeindemnity for, filing a consolidated federal income Tax Return Taxes (other than a group an Agreement the common parent only parties to which are the Company and the Subsidiaries).
(g) The Company has complied in all material respects with all rules and regulations relating to the withholding of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwiseTaxes.
Appears in 1 contract
Samples: Merger Agreement (Dakota Telecommunications Group Inc)
Taxes and Tax Matters. (a) The Company and each Company Subsidiary have paid, or reserved in accordance with GAAP, all All Taxes due and payable by any of them for from the Company on or with respect to all periods up to and including before the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax ReturnClosing have been paid.
(b) The Company and each Company Subsidiary have has filed on a timely basis all material Company Tax Returns that it was required to filefile pursuant to applicable Laws. All such Company Tax Returns were accurate and complete in all material respects. None of Company or any Company Subsidiary is not the beneficiary of any extension of time within which to file any Tax Return which has not yet been filedReturn. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them Company is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has given not executed any currently effective waiver or extension of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets Assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted EncumbrancesTax.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder shareholder or other third party.
(d) None of Company or any Company Subsidiary has no knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company has filed Tax Returns have been filedReturns. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror Parent copies of, and Section 3.16 of the Company Disclosure Letter Schedule sets forth a complete and accurate list of, income tax returns required to be filed by Company Tax Returns filed with the U.S. Internal Revenue Service or any state government with respect to the taxable periods of Company and any Company Subsidiary ended on or after during the period between December 31, 19961998 and the date hereof; indicates those Company Tax Returns that which of such tax returns (if any) have been audited; and indicates those Company Tax Returns that which of such tax returns (if any) currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, and will not, as of the Closing Date, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on in the face of the such unaudited monthly financial statements (rather than of Company covering the month in any which such dates occur. Such financial statements, including, without limitation, the notes thereto, (i) will be prepared in accordance with the books and records of Company and (ii) do not exceed that reserve will present fairly the financial position of Company and its results of operations and cash flows as adjusted of the respective dates of and for the passage of time through the Closing Date periods referred to in such financial statements in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax ReturnsGAAP applied on a basis consistent with prior accounting periods.
(f) None of Company or any Company Subsidiary has not filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is not a party to any Tax allocation or sharing agreementAgreement. None of Company or any Company Subsidiary (A) has not been a member of an "“affiliated group," ” as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or and (B) has does not have any Liability liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), Law) as a transferee or successor, by contract or otherwise.
(g) Section 3.16 of the Company Disclosure Schedule sets forth the following information with respect to Company as of the date hereof: (i) the tax basis of Company in its Assets; (ii) the amount of any net operating loss, net capital loss, unused investment, foreign tax or other credit, or excess charitable contribution allocable to Company; and (iii) the amount of any gain or loss allocable to Company arising out of any “intercompany transaction” as defined in Treas. Reg. Section 1.1502-13(b)(1) that has not been taken into account as of the date hereof.
Appears in 1 contract
Taxes and Tax Matters. (a) All material Tax Returns required to be filed by or with respect to the Company and its Subsidiaries have been timely filed and all such Tax Returns are true, complete and correct in all material respects. The Company and each Company Subsidiary its Subsidiaries have paid (or caused to be paid) all material Taxes that are due and payable (other than Taxes that are being contested in good faith and, or if required by GAAP, are adequately reserved for in the Financial Statements in accordance with GAAP, all Taxes due and payable by any of them for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) The Company and each Company Subsidiary have filed on a timely basis all material Company There is no audit, Litigation or other Tax Returns that it was required Proceeding pending, threatened in writing or, to file. All such Company Tax Returns were accurate and complete the Knowledge of the Company, otherwise threatened, in all material respects. None respect of any Taxes for which the Company or any of its Subsidiaries is or may become liable, and neither the Company Subsidiary is the beneficiary nor any of its Subsidiaries has received written notice of any extension Tax audit that is currently pending. No material deficiencies for any Taxes have been proposed, asserted or assessed in writing, or to the Knowledge of time within which to file the Company, otherwise, by a Taxing Authority against the Company or any Tax Return which has of its Subsidiaries that have not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) The charges, accruals and reserves for Taxes with respect to the Company and each Company Subsidiary has withheld and paid its Subsidiaries reflected on the Financial Statements are adequate, in accordance with GAAP Consistently Applied, to cover all material Taxes required to have been withheld payable by the Company and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyits Subsidiaries for all periods through the date of such Financial Statements.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. the Company and each Company Subsidiary its Subsidiaries has delivered to the Acquiror copies of, and Section 3.16 granted any extension or waiver of the Company Disclosure Letter sets forth a complete and accurate list ofstatute of limitations period, Company or of the time for assessment or collection, applicable to any material Tax Returns filed with respect or material Tax Return (which, for the avoidance of doubt, shall not include any extensions of the statute of limitations period due to the taxable periods extensions of Company and time to file any Company Subsidiary ended on Tax Return), which period (after giving effect to such extension or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditwaiver) has not yet expired.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and Neither the Company nor any of its Subsidiaries furnished is a party to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for or bound by any Tax Liability sharing, allocation or indemnification agreement or arrangement with any person (rather other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary of its Subsidiaries) other than any typical tax gross-up or indemnification provisions contained in filing their Company Tax Returnscommercial agreements entered into in the ordinary course of business the principal purpose of which agreements does not relate to the sharing or allocation of Taxes.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company Subsidiaries (i) is or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codeany affiliated, filing a consolidated federal income consolidated, combined, unitary, loss sharing or similar group for Tax Return purposes (other than a group of which the Company is or was the common parent of which was Companyparent) or (Bii) has any Liability for the Taxes of any Person (other than the Company or any of Companyits Subsidiaries) under Treas. Reg. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, local or foreign lawLaw), as a transferee or successor, by contract or otherwise.
(g) The Company and each of its Subsidiaries have (i) deducted, withheld and collected or paid (and remitted to the appropriate Taxing Authority) all amounts required to be deducted, withheld or collected or paid under any applicable Tax Law with respect to any payment made to or received from any employee, independent contractor, direct or indirect owner, debtholder or other third party and (ii) complied in all material respects with all applicable rules and regulations relating to the withholding and collection of Taxes.
(h) There are no Liens for material Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.
(i) In the past three (3) years, no written claim has been made by any Taxing Authority in any jurisdiction where the Company and its Subsidiaries do not currently file Tax Returns or pay Taxes of a particular type that they are required to file such Tax Returns or pay such Taxes in that jurisdiction, which claim has not been resolved.
(j) There are no rulings, closing agreements or similar arrangements with any Governmental Authority with regard to Taxes, Tax Returns or the determination of the Tax liability of any of the Company and its Subsidiaries, in each case, that would have continuing effect on periods (or portions thereof) ending after the Closing Date.
(k) None of the Company and its Subsidiaries has engaged in any transaction that is identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Section 1.6011-4(b)(2) of the U.S. Treasury Regulations.
(l) In the last two (2) years, none of the Company and its Subsidiaries has distributed stock of another Person or had its stock distributed by another Person in a transaction that was purported or intended to be governed by Section 355 of the Code.
(m) None of the Company and its Subsidiaries will be required to include any item of income or gain in, or be required to exclude any item of deduction or loss from, any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in accounting method made prior to the Closing, (ii) closing or similar agreement with any Taxing Authority executed prior to the Closing, (iii) installment sale or open transaction disposition made prior to the Closing, or (iv) election under Section 108(i) of the Code.
(n) Each of the Company and its Subsidiaries (other than Regulatory Research Associates, Inc. and SNL Information Services Philippines, Inc.) is, since its formation has been, and at all times through the Effective Time will be, classified as a disregarded entity within the meaning of Treasury Regulations Section 301.7701-2(a) (or, in the case of the Company, a partnership (but not a “publicly traded partnership” within the meaning of Section 7704 of the Code)) for U.S. federal income tax purposes. None of the Company nor any of its Subsidiaries owns any stock, partnership interest or other type of equity interest in any Person (other than Regulatory Research Associates, Inc., SNL Information Services Philippines, Inc. and minority equity interests in entities the aggregate value of which is less than 0.1% of the sum of all amounts treated as consideration paid hereunder to the Unitholders for Tax purposes, and, for the avoidance of doubt, other than any equity interests in entities classified as disregarded entities within the meaning of Treasury Regulations Section 301.7701-2(a)) for U.S. federal income tax purposes.
(o) No Subsidiary of the Company that is classified as a corporation for U.S. federal income tax purposes owns (and at the Effective Time, no such Subsidiary will own) any Units.
Appears in 1 contract
Taxes and Tax Matters. (a) The Company and each Company Subsidiary have paid, or reserved in accordance with GAAP, has paid all Taxes due and payable by any of them it for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) The Company and each Company Subsidiary have has filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company or any Company Subsidiary is not the beneficiary of any extension of time within which to file any Tax Return which has not yet been filedReturn. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject to taxation by that jurisdiction. None of Company or any Company Subsidiary has not given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted EncumbrancesTax.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder shareholder or other third party.
(d) None of Company or any and the Company Subsidiary has Shareholders have no knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company or any Company Shareholders has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror Parent copies of, and Section Schedule 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 19962005; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The Except as set forth on Schedule 3.16(e), the unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror Parent pursuant to Section 3.08 of this Merger Agreement3.08, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has not filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Except as set forth on Schedule 3.16(e), the Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is not a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has not been a member of an "“affiliated group," ” as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or and (B) has does not have any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.
(g) Schedule 3.16 sets forth the following information with respect to Company as of the date hereof: (i) the tax basis of Company in its assets; (ii) the amount of any net operating loss, net capital loss, unused investment, foreign tax or other credit, or excess charitable contribution allocable to Company; and (iii) the amount of any deferred gain or loss allocable to Company arising out of any “deferred intercompany transaction” as defined in Treas. Reg. Section 1.1502-13(a)(2).
(h) Company (and any predecessor of Company) has been a validly electing S corporation within the meaning of Code §§ 1361 and 1362 at all times during its existence and Company will be an S corporation up to and including the day before the Closing Date.
Appears in 1 contract
Taxes and Tax Matters. (a) The Company Acquired Companies and each Company Subsidiary all of their Subsidiaries have paidtimely (taking into account extensions) filed, had filed on its behalf, or reserved joined in accordance with GAAP, the filing of all Taxes due Income Tax Returns and payable by any of them for or all other material Tax Returns required to have been filed with respect to (or taking into account) any Acquired Company and their Subsidiaries, and have paid all periods up to and including the date hereof (without regard to whether or not such Income Taxes are or were disputed), whether or not shown on any Tax Returnthereon as owing.
(b) The All Taxes shown as due and owing on any Tax Return by or with respect to each Acquired Company and each Company Subsidiary of their Subsidiaries have filed on a been timely basis paid.
(c) The Sellers have made available to the Buyers true, correct and complete copies of all material Company U.S. federal, state, and non-U.S. Income Tax Returns that it was required filed by or with respect to file. All such each Acquired Company and its Subsidiaries for Tax Returns were accurate and complete in all material respects. periods ending on or after December 31, 2010.
(d) None of Company the Acquired Companies or any Company Subsidiary of their Subsidiaries is currently the beneficiary of any extension of time within which to file any Tax Return which Returns or has not yet been filed. a request for any such extension pending.
(e) To the Knowledge of the Sellers, there are no ongoing, pending, or threatened, Tax Disputes of or with respect to any of the Acquired Companies or any of their Subsidiaries.
(f) There are no Liens for any Taxes (other than Liens described in clause (iii) of the definition of Permitted Liens) against any interest in or any asset of any Acquired Company or their Subsidiaries.
(g) None of the Acquired Companies or any of their Subsidiaries has executed or filed with any Governmental Entity any agreement extending the period for assessment or collection of any Taxes that is still open.
(h) No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company received asserting that any of the Acquired Companies or any Company Subsidiary does not file Company Tax Returns that any one of them their Subsidiaries is or may be subject to taxation by that jurisdiction. None of Company or in any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on jurisdiction where any of the assets of Company Acquired Companies or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any such Subsidiary, as the case may be, has not filed, for the relevant Tax period, Tax Returns except for Permitted Encumbrancessuch claims that would not result in a Seller Material Adverse Effect.
(ci) Company and each Company Subsidiary None of the Acquired Companies or any of their Subsidiaries is or has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid a party or owing otherwise bound by or subject to any employee, independent contractor, creditor, stockholder Tax Sharing Agreement or other third partyTax Protection Agreement.
(dj) None of Company the Acquired Companies or any Company Subsidiary has knowledge of any facts their Subsidiaries is or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codeaffiliated, filing a consolidated federal income consolidated, combined or unitary group for Tax Return purposes (other than a group the common parent of which was Company) or (B) has any Liability whether for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of U.S. federal, state, local, or foreign lawnon-U.S.) (together, a “Consolidated Tax Group”). None of the Acquired Companies or any of their Subsidiaries could have any liability for Taxes of a Person other than itself, whether by Law, as a transferee or successor, by contract contract, or otherwise.
(k) There is no request pending with respect to a private letter ruling or technical advice memorandum from the IRS or comparable ruling or advice from any other Governmental Entity, in each case with respect to any of the Acquired Companies or any of their Subsidiaries. There is no outstanding “closing agreement” as described in Section 7121 of the Code (or any state, local or non-U.S. analogue), or any request therefore, with respect to any of the Acquired Companies or any of their Subsidiaries.
(l) None of the Acquired Companies or any of their Subsidiaries is or has been a party to any “listed transaction” as defined in Code §6707A(c)(2) and Reg. § 1.6011-4(b)(2) or has been a “material advisor” as defined in Section 6111(b) of the Code (or any state, local, or non-U.S. analogue).
(m) Section 4.10(m) of the Disclosure Schedule lists all outstanding powers of attorney issued by, or otherwise relating to, any of the Acquired Companies or any of their Subsidiaries that relate to Taxes or Tax matters.
(n) Section 4.10(n) of the Disclosure Schedule sets forth a full and accurate description of any reserves of any Person or Consolidated Tax Group for any Taxes, including as required by “FIN 48 (ASC 470)” or “FAS 5 (ASC 450)” or to be set forth on “Schedule UTP” or on the Financial Statements, in each case for which any of the Acquired Companies or any of their Subsidiaries could be legally liable as a result of being a member at any time of a Consolidated Tax Group.
(o) Section 4.10(o) of the Disclosure Schedule lists all state, local, and non-U.S. jurisdictions in which any of the Acquired Companies or any of their Subsidiaries is required by Law to file a Tax Return, or is otherwise subject to Tax by virtue of having a nexus or permanent establishment or other place of business in that jurisdiction.
(p) Section 4.10(p) of the Disclosure Schedule sets forth the adjusted basis (as determined for U.S. federal income tax purposes) of each asset owned by the Acquired Companies and their Subsidiaries.
(q) No less than ninety percent (90%) of the fair market value of the assets of each Subsidiary is comprised of land and/or improvements on land.
(r) None of the Acquired Companies or any of their Subsidiaries (i) has ever been treated or otherwise taxable as other than a partnership or disregarded entity for U.S. federal income tax purposes, and (ii) has ever elected or taken the position (on any Tax Return otherwise) that it is or was taxable as other than a partnership or disregarded entity for U.S. federal income tax purposes.
(s) To the Knowledge of the Sellers, any and all transactions between or among any of the Acquired Companies, their Subsidiaries, the Sellers, and/or Affiliates of the foregoing, have occurred on arm’s length terms, and each of the Acquired Companies and their Subsidiaries have complied with any and all Tax-related requirements that the arm’s-length nature of the terms of such transactions be documented. For purposes of this Section 4.10, references to the Acquired Companies and their Subsidiaries including an entity with respect to which any of the Acquired Companies or any of their Subsidiaries is a successor, whether pursuant to Section 381 of the Code or by operation of Law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Campus Crest Communities, Inc.)
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paid, prior to the Effective Time) duly and timely filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up applicable Taxes other than those the failure of which to and including file would not have a Company Material Adverse Effect. All such Company Tax Returns are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. The Company and the Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing authority (without regard to whether or not such Taxes are or were disputed), whether or not shown as due on any Company Tax ReturnReturns) or are contesting such Taxes in good faith; or (ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes.
(b) The Except as set forth in Section 3.18(b) of the Company and each Company Subsidiary have filed on a timely basis Disclosure Schedule, all material Company Tax Returns that it was required have been examined by the relevant Taxing authorities, or closed without audit by applicable Law, and all deficiencies proposed as a result of such examinations have been paid, settled or reserved for in the Financial Statements, for all taxable years prior to fileand including the taxable year ended December 31, 1998. All such Except as set forth in Section 3.18(b) of the Company Tax Returns were accurate and complete in all material respects. None Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the knowledge of the Company or any Company Subsidiary is the beneficiary Subsidiary, threatened in respect of any extension of time within material Taxes for which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted EncumbrancesSubsidiary, threatened.
(c) Except as set forth in Section 3.18(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary (i) has executed or filed with the IRS (as defined in Article X) any consent to have the provisions of Section 341(f) of the Code apply to it; (ii) is subject to Section 999 of the Code; or (iii) is a party to an Agreement relating to the sharing, allocation or payment of, or indemnity for, Taxes (other than an Agreement the only parties to which are the Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partythe Subsidiaries).
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which The Company has knowledge based upon personal contact complied in all material respects with any agent of such authority. Company all rules and each Company Subsidiary has delivered regulations relating to the Acquiror copies of, and Section 3.16 withholding of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditTaxes.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Samples: Merger Agreement (McLeodusa Inc)
Taxes and Tax Matters. (a) The Company and each Company Subsidiary All material Tax Returns required to have paid, been filed by Buyer or reserved in accordance with GAAP, all Taxes due and payable by any of its Subsidiaries have been duly and timely filed (taking into account applicable extensions) with the appropriate Taxing Authorities and all such Tax Returns were true, correct and complete in all material respects. Buyer and all of its Subsidiaries have paid (or caused to be paid) all material Taxes that were required to have been paid by them for or with respect to all periods up to and including the date hereof under applicable Law (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax ReturnReturns).
(b) The Company and each Company Subsidiary have filed on a timely basis all There is no Action pending or, to the Knowledge of Buyer, threatened in writing in respect of any material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company Taxes for which Buyer or any Company Subsidiary of its Subsidiaries is or may become liable, nor has any deficiency for any such material Taxes been proposed, asserted or, to the beneficiary Knowledge of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (Buyer, threatened in writing which has not been satisfactorily fully resolved.
(c) by an authority There are no rulings, closing agreements, or similar agreements with any Taxing Authority the terms of which would have a material effect on the Buyer or any of its Subsidiaries.
(d) Buyer and its Subsidiaries have complied in a all material respects with all Laws relating to the withholding of Taxes.
(e) No Taxing Authority in any jurisdiction where Company Buyer and its Subsidiaries do not file Tax Returns has made a claim in writing that Buyer or any Company Subsidiary does not file Company Tax Returns that any one of them its Subsidiaries is or may be subject to taxation by by, or file Tax Returns in, that jurisdiction. None , nor has, to the Knowledge of Company or Buyer, any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to Taxing Authority threatened such a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to in each case, which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsremains unresolved).
(f) None There are no Liens for Taxes upon any assets of Company Buyer or any Company Subsidiary of its Subsidiaries except for Permitted Liens.
(g) Neither Buyer nor any of its Subsidiaries has filed participated in a consent under “listed transaction” required to be disclosed pursuant to Treasury Regulations Section 341(f1.6011-4(b) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been predecessor thereof.
(h) Buyer is not a “United States real property holding corporation Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) 897 of the Code. The Company and each Company Subsidiary has disclosed on .
(i) Neither Buyer nor any of its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary Subsidiaries (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codea consolidated, filing a consolidated federal income affiliated, combined, unitary or similar Tax Return group (other than a group the common parent of which was Companyis the Buyer) or (B) has any Liability liability for the Taxes of any Person person (other than any of Companythe Buyer and its Subsidiaries) under Treas. Reg. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign non-U.S. law), as a transferee or successor, by contract Contract, or otherwiseotherwise (other than agreements whose principal purpose is not related to Tax).
(j) Neither the Buyer nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending prior to the Closing Date; (B) installment sale
Appears in 1 contract
Samples: Contribution Agreement (Victory Capital Holdings, Inc.)
Taxes and Tax Matters. (a) The Company Each of the Companies and each Company Subsidiary have paid, Pregis Mexico with respect to the Mexico Business has timely filed or reserved caused to be timely filed U.S. and Mexican federal Income Tax Returns and all material other Tax Returns required by applicable Law to be filed by it (taking into account all applicable extensions). All such Tax Returns were correct and complete in accordance with GAAP, all material respects. All material Taxes due and payable owing by any of them for or the Companies and Pregis Mexico with respect to all periods up to and including the date hereof Mexico Business (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.) have been paid or appropriately reserved on the books and records of the Companies or Pregis Mexico, as applicable;
(b) The Company and each Company Subsidiary have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company or any Company Subsidiary the Companies and Pregis Mexico with respect to the Mexico Business currently is the beneficiary of any extension of time within which to file any Tax Return which Return. In the past three (3) years, none of the Companies and Pregis Mexico with respect to the Mexico Business has not yet been filed. No received any written claim has ever been made (which has not been satisfactorily resolved) by an authority from any Governmental Authority in a jurisdiction where Company or any Company Subsidiary it does not file Company Tax Returns that any one of them it is or may be subject to taxation by that jurisdiction;
(c) Each of the Companies and Pregis Mexico with respect to the Mexico Business has withheld all Taxes required to be withheld from payments to employees, agents, independent contractors, creditors, stockholders, Affiliates and other third parties as required by applicable Law and remitted such amounts to the appropriate Governmental Authority;
(d) There are no audits or administrative or judicial proceedings pending or being conducted or threatened in writing with respect to the Taxes or Tax Returns of any of the Companies or Pregis Mexico with respect to the Mexico Business. None of Company the Companies or any Company Subsidiary Pregis Mexico with respect to the Mexico Business has given any currently effective waiver of waived any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. ;
(e) There are no security interests Liens for Taxes on any assets of any of the assets of Company Companies or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed Pregis Mexico with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31Mexico Business, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.Permitted Liens;
(f) None of Company the Companies is a party to any agreement, contract, arrangement or plan (other than agreements entered into after the Closing or agreements entered into by the Buyer or any Company Subsidiary has filed a consent under Section 341(f) Affiliate of the Code, concerning collapsible corporations. Buyer other than any of the Companies) that as a result of the transactions contemplated hereby will result in any of the Companies making a payment alone or in the aggregate (but excluding any payments made pursuant to any agreements entered into after the Closing or agreements entered into by the Buyer or any Affiliate of the Buyer other than any of the Companies) that is an “excess parachute payment” within the meaning of Code Section 280G;
(g) None of Company or any Company Subsidiary the Companies is currently a United States real property holding corporation within the meaning of Code Section 897(c)(2), and has not been a United States real property holding corporation within the meaning of Code Section 897(c)(2) of the Code at any point during the applicable period specified in Code Section 897(c)(1)(A)(ii);
(h) None of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary Companies is a party to or bound by any Tax allocation or sharing agreement. None agreement the primary purpose of Company which is the sharing of responsibility for Tax liabilities (or the benefit of Tax refunds and other Tax attributes) between any Company Subsidiary of the Companies, between any of the Companies and Pregis, or between any of the Companies and the Hexacomb Sellers;
(i) Since 2006, none of the Companies (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, group filing a consolidated federal income Tax Return (other than a group the common parent of which was CompanyPregis or the Hexacomb Sellers) or (B) has had any Liability liability for the Taxes of any Person (other than any of Companythe Companies) under Treas. Reg. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law);
(j) None of the Companies 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 the day after the Closing Date as a transferee result of any:
(i) adjustment under Code Section 481 (or successorany corresponding or similar provision of state, by contract local, or otherwise.foreign income Tax law) as a result of a change in method of accounting of any of the Companies for a taxable period ending on or prior to the Closing Date;
Appears in 1 contract
Taxes and Tax Matters. (a) The Company and each Company Subsidiary All material Tax Returns required to have paid, been filed by Buyer or reserved in accordance with GAAP, all Taxes due and payable by any of its Subsidiaries have been duly and timely filed (taking into account applicable extensions) with the appropriate Taxing Authorities and all such Tax Returns were true, correct and complete in all material respects. Buyer and all of its Subsidiaries have paid (or caused to be paid) all material Taxes that were required to have been paid by them for or with respect to all periods up to and including the date hereof under applicable Law (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax ReturnReturns).
(b) The Company and each Company Subsidiary have filed on a timely basis all There is no Action pending or, to the Knowledge of Buyer, threatened in writing in respect of any material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete in all material respects. None of Company Taxes for which Buyer or any Company Subsidiary of its Subsidiaries is or may become liable, nor has any deficiency for any such material Taxes been proposed, asserted or, to the beneficiary Knowledge of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (Buyer, threatened in writing which has not been satisfactorily fully resolved.
(c) by an authority There are no rulings, closing agreements, or similar agreements with any Taxing Authority the terms of which would have a material effect on the Buyer or any of its Subsidiaries.
(d) Buyer and its Subsidiaries have complied in a all material respects with all Laws relating to the withholding of Taxes.
(e) No Taxing Authority in any jurisdiction where Company Buyer and its Subsidiaries do not file Tax Returns has made a claim in writing that Buyer or any Company Subsidiary does not file Company Tax Returns that any one of them its Subsidiaries is or may be subject to taxation by by, or file Tax Returns in, that jurisdiction. None , nor has, to the Knowledge of Company or Buyer, any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to Taxing Authority threatened such a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to in each case, which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returnsremains unresolved).
(f) None There are no Liens for Taxes upon any assets of Company Buyer or any Company Subsidiary of its Subsidiaries except for Permitted Liens.
(g) Neither Buyer nor any of its Subsidiaries has filed participated in a consent under “listed transaction” required to be disclosed pursuant to Treasury Regulations Section 341(f1.6011-4(b) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been predecessor thereof.
(h) Buyer is not a “United States real property holding corporation Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) 897 of the Code. The Company and each Company Subsidiary has disclosed on .
(i) Neither Buyer nor any of its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary Subsidiaries (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Codea consolidated, filing a consolidated federal income affiliated, combined, unitary or similar Tax Return group (other than a group the common parent of which was Companyis the Buyer) or (B) has any Liability liability for the Taxes of any Person person (other than any of Companythe Buyer and its Subsidiaries) under Treas. Reg. Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign non-U.S. law), as a transferee or successor, by contract Contract, or otherwiseotherwise (other than agreements whose principal purpose is not related to Tax).
(j) Neither the Buyer nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending prior to the Closing Date; (B) installment sale or open transaction disposition made prior to the Closing Date; (C) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. law) executed prior to the Closing Date; or (D) prepaid amount received or deferred revenue realized prior to the Closing Date.
(k) During the two-year period ending on the date hereof, each of Buyer and any of its Subsidiaries has not been a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code.
Appears in 1 contract
Samples: Contribution Agreement (Victory Capital Holdings, Inc.)
Taxes and Tax Matters. Since January 1, 2011:
(a) The Company All income Tax Returns and each Company Subsidiary have paidall other material Tax Returns required to be filed by the Company, or reserved in accordance with GAAP, all Taxes due and payable by any of them for its Subsidiaries or with respect to any Professional Association have been duly and timely filed (taking into account applicable extensions) and all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) The Company and each Company Subsidiary have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate are true, correct and complete in all material respects. None The Company and each of its Subsidiaries have paid (or caused to be paid) all material Taxes that are due and payable (other than Taxes that are being contested in good faith and are reserved for in accordance with GAAP in the Financial Statements).
(b) As of the date hereof, there is no material action, suit, proceeding, audit, investigation or claim pending or, to the Knowledge of the Company, threatened in writing in respect of any Taxes for which the Company, any Subsidiary or any Professional Association is or may become liable, nor has any material deficiency or claim for any such Taxes been proposed, asserted or, to the Knowledge of the Company, threatened in writing.
(c) Neither the Company nor any of its Subsidiaries nor any Professional Association is subject to any Contract or agreement relating to the sharing, allocation or payment of, or indemnity for, any Taxes. For the purposes of this Section 3.17(c), the following Contracts shall be disregarded: (i) commercially reasonable Contracts not primarily related to Taxes providing for the allocation or payment of real property Taxes attributable to real property leased or occupied by the Company or its Subsidiaries and (ii) commercially reasonable Contracts not primarily related to Taxes providing for the allocation or payment of personal property Taxes, sales or use Taxes or value added Taxes with respect to personal property leased, used, owned, purchased or sold in the ordinary course of business.
(d) The Company, each of its Subsidiaries and each Professional Association have complied in all material respects with all rules and regulations relating to the withholding of Taxes.
(e) There are no liens for Taxes upon any of the assets of the Company or any Company Subsidiary is the beneficiary of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where Company its Subsidiaries or any Professional Association other than Permitted Liens.
(f) Neither the Company Subsidiary does not file Company Tax Returns that nor any one of them is or may be subject to taxation by that jurisdiction. None of Company or its Subsidiaries nor any Company Subsidiary Professional Association has given any currently effective waiver of waived any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on deficiency (other than as a result of extending the due date of a Tax Return in the ordinary course of business), which waiver or extension is still in effect.
(g) No unresolved written claim has been made by any of Taxing Authority in a jurisdiction where the assets of Company or any Company of its Subsidiaries or any Professional Association does not file Tax Returns that any such Company, Subsidiary or Professional Association is or may be subject to taxation by that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrancesjurisdiction.
(ch) Neither the Company nor any of its Subsidiaries nor any Professional Association (i) has ever been a member of an affiliated group or filed or been included in a combined, consolidated or unitary income Tax Return (other than, in the case of the Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to its Subsidiaries, any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge such Tax Return of any facts Seller Group) or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning (ii) has incurred any liability for Taxes of Company another Person under Section 1.1502-6 of the Treasury Regulations (or any Company Subsidiary either similar provision of state, local or non-U.S. Law).
(i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of Neither the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods nor any of Company and its Subsidiaries nor any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and Professional Association has engaged in any Company Subsidiary (i) did nottransaction that, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to hereof, is a “listed transaction” under Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income1.6011-4(b)(2) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax ReturnsTreasury Regulations.
(fj) None Neither the Company nor any of its Subsidiaries nor any Professional Association has distributed the stock of another entity or has had its stock distributed by another entity 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 of its Subsidiaries nor any Professional Association will, following the Closing, have any material liability for Taxes as a result of any (A) “closing agreement” as described in Section 7121 of the Code (or any Company Subsidiary has filed a consent comparable provision of Law in any jurisdiction) executed on or prior to the Closing Date, (B) installment sale or open transaction disposition made on or prior to the Closing Date, (C) prepaid amount received on or prior to the Closing Date, (D) election under Section 341(f108(i) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary has been a United States real property holding corporation within the meaning of Section 897(c)(2(E) adjustment pursuant to section 481(a) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company (or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (Apredecessor provision) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee non-U.S. Tax Law by reason of any change in accounting methods on or successor, by contract or otherwiseprior to the Closing Date.
Appears in 1 contract
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) required to be filed after the date hereof and before the Closing Date, will have paid, prior to the Closing Date) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Closing Date with respect to all periods up to and including the date hereof (without regard to whether applicable material Taxes. No material penalties or not such Taxes other material charges are or were disputed), whether or not shown on will become due with respect to any Tax Return.
(b) The Company and each Company Subsidiary have filed on a timely basis all material such Company Tax Returns that it was required to fileas the result of the late filing thereof. All such Company Tax Returns were accurate are (or, in the case of returns required to be filed after the date hereof and before the Closing Date, will be) true and complete in all material respects. None The Company and the Subsidiaries: (i) have paid all Taxes due with respect to the periods covered by any such Company Tax Returns; or (ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Closing Date will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes with respect to periods ending on or prior to the Closing Date, whether or not such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Subsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) Neither the Company Subsidiary nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Closing Date will have any liability for Taxes payable for or with respect to any periods ending on or prior to the Closing Date in excess of the amounts actually paid on or prior to the Closing Date or reserved for in the Financial Statements, except for any Taxes incurred in the Ordinary Course of Business subsequent to the date of the latest Financial Statement.
(c) There is no action, suit, proceeding, audit, investigation or claim pending or, to the beneficiary knowledge of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Subsidiary, threatened in writing in respect of any Taxes for which the Company or any Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed or asserted in writing or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened in writing. Neither the Company nor any Subsidiary has given consented in writing to any currently effective waiver waivers or extensions of any statute of limitations in respect of Taxes of the Company or agreed to any Subsidiary which waiver or extension is currently effective extension in effect. No power of time attorney granted by the Company or any Subsidiary with respect to a Tax assessment or deficiency. There are no security interests on any of the assets of Company or any Company Subsidiary that arose in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has made available to Acquiror true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all material written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding currently pending, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company limitations for the assessment of Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audithas not expired.
(e) The unpaid Taxes of Neither the Company and nor any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company is or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has ever been a member of an "affiliated group," as defined in Section 1504(a) group of the Code, corporations filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) Returns and has any Liability no liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502ss.1.1502-6 (or any similar provision of state, local, local or foreign law), as a transferee or successor, by contract or otherwise; (ii) has executed or filed with the IRS any consent to have the provisions of Section 341(f) of the Code apply to it; (iii) is subject to Section 999 of the Code; (iv) is a passive foreign investment company as defined in Section 1296(a) of the Code; or (v) is a party to an Agreement relating to the sharing, allocation or payment of, or indemnity for, Taxes (other than an Agreement the only parties to which are the Company and the Subsidiaries).
(f) The Company has complied in all material respects with all rules and regulations relating to the withholding of Taxes.
(g) The Company has had in effect a valid "S" election for federal and state income tax purposes for a period commencing on the date of its incorporation and at all times during this period through the Closing has been taxable as an S corporation for federal income tax purposes and the Company has also been fully recognized and taxable as an "S" Corporation (or similar entity entitled to special tax treatment) by each state, locality or other jurisdiction in which it conducts any business. No written claim has ever been made by a Governmental Entity in which the Company does not file Company Tax Returns that the Company may be subject to taxation by that jurisdiction.
(h) The Merger will qualify as a tax-free reorganization within the meaning of Section 368(a) or Section 368(a)(2)(D) of the Code and, in reliance on the foregoing, the Acquiror and Acquiror Sub have agreed to report the transaction as such on their Tax Returns.
Appears in 1 contract
Taxes and Tax Matters. (a) All Tax Returns required to have been filed by the Company or any of its Subsidiaries have been duly and timely filed (taking into account applicable extensions) and all such Tax Returns were true, correct and complete in all material respects. The Company and each Company Subsidiary all of its Subsidiaries have paid (or caused to be paid, or reserved in accordance with GAAP, ) all material Taxes due and payable that were required to have been paid by any of them for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax ReturnReturns).
(b) Except as set forth on Section 3.16(b) of the Company Disclosure Schedule, there is no action, suit, proceeding, audit or investigation pending or, to the Knowledge of the Company, threatened in writing in respect of any Taxes for which the Company or any of its Subsidiaries is or may become liable, nor has any deficiency for any such Taxes been proposed, asserted or, to the Knowledge of the Company, threatened in writing.
(c) There are no rulings, closing agreements, or similar agreements with any Taxing Authority the terms of which would have an effect on the Company or any of its Subsidiaries.
(d) Neither of the Company or any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of Taxes, except for any such agreement entered into in the ordinary course of business and the principal purpose of which is not the allocation or sharing of Taxes.
(e) The Company and each Company Subsidiary its Subsidiaries have filed on a timely basis all material Company Tax Returns that it was required to file. All such Company Tax Returns were accurate and complete complied in all material respects. None respects with all rules and regulations relating to the withholding of Taxes.
(f) Neither of the Company or any Company Subsidiary of its Subsidiaries (i) is currently the beneficiary of any extension of time within which to file any Tax Return which Return, except extensions of times that are automatically granted and applied for in the ordinary course of business, (ii) has not yet been filed. waived or extended any statute of limitations in respect of material Taxes, or (iii) has agreed to any extension of time with respect to any material Tax assessment or deficiency.
(g) No written claim has ever been made (which has not been satisfactorily resolved) by an authority Taxing Authority in a any jurisdiction where the Company and its Subsidiaries do not file Tax Returns has made a claim in writing that the Company or any Company Subsidiary does not file Company Tax Returns that any one of them its Subsidiaries is or may be subject to taxation by that jurisdiction. None , nor has any Taxing Authority threatened such a claim in writing.
(h) There are no Liens for Taxes upon any assets of the Company or any Company Subsidiary has given any currently effective waiver of any statute of limitations in respect of Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. There are no security interests on any its Subsidiaries except for Permitted Liens.
(i) Neither of the assets of Company or any Company Subsidiary that arose of its Subsidiaries has participated in connection with any failure (or alleged failure) to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes a “reportable transaction” required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) None of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which Company Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of Company or any Company Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to the taxable periods of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an audit.
(e) The unpaid Taxes of Company and any Company Subsidiary (i) did not, as of the date of any financial statements of Company and the Company Subsidiaries furnished to Acquiror be disclosed pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax Returns.
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502§1.6011-6 4(b) or any predecessor thereof.
(j) Neither of the Company or 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 any similar provision of state, local, or foreign law), portion thereof) ending after the Closing Date as a transferee result of any: (A) change in method of accounting for a taxable period ending on or successorprior to the Closing Date; (B) installment sale or open transaction disposition made on or prior to the Closing Date; (C) prepaid amount received on or prior to the Closing Date; or (D) any election made or amount received by the Company or any of its Subsidiaries on or before the Closing Date.
(k) For U.S. federal income tax purposes, by contract the Company and each of its Subsidiaries has been treated as either a partnership or otherwisea disregarded entity at all times since its formation.
Appears in 1 contract
Samples: Purchase Agreement (Victory Capital Holdings, Inc.)
Taxes and Tax Matters. (a) The Company and each the Subsidiaries have (or, in the case of Company Subsidiary Tax Returns (as defined in Article X) becoming due after the date hereof and before the Effective Time, will have paid, prior to the Effective Time) duly filed all Company Tax Returns required to be filed by the Company and the Subsidiaries at or reserved in accordance with GAAP, all Taxes due and payable by any of them for or before the Effective Time with respect to all periods up to and including the date hereof (without regard to whether applicable material Taxes. No material penalties or not such Taxes other charges are or were disputed), whether or not shown on will become due with respect to any Tax Return.
(b) The Company and each Company Subsidiary have filed on a timely basis all material such Company Tax Returns that it was required to fileas the result of the late filing thereof. All such Company Tax Returns were accurate are (or, in the case of returns becoming due after the date hereof and before the Effective Time, will be) true and complete in all material respects. None The Company and the Subsidiaries: (i) have paid all Taxes due in connection with any such Company Tax Returns; or (ii) have established (or, in the case of amounts becoming due after the date hereof, prior to the Effective Time will have paid or established) in the Financial Statements adequate reserves (in conformity with GAAP consistently applied) for the payment of such Taxes. The amounts set up as reserves for Taxes in the Financial Statements are sufficient for the payment of all unpaid Taxes, whether or not such Taxes are disputed or are yet due and payable, for or with respect to the applicable period, and for which the Company or any Subsidiary may be liable in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee of the Assets of, or successor to, any Person.
(b) Neither the Company Subsidiary nor any Subsidiary, either in its own right (including, without limitation, by reason of being a member of the same affiliated group) or as a transferee, has or at the Effective Time will have any liability for Taxes payable for or with respect to any periods prior to and including the Effective Time in excess of the amounts actually paid prior to the Effective Time or reserved for in the Financial Statements, except for any Taxes due in connection with the Merger or incurred in the Ordinary Course of Business subsequent to the date of the latest Financial Statement.
(c) Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no action, suit, proceeding, audit, investigation or claim pending or, to the beneficiary knowledge of any extension of time within which to file any Tax Return which has not yet been filed. No written claim has ever been made (which has not been satisfactorily resolved) by an authority in a jurisdiction where the Company or any Subsidiary, threatened in respect of any Taxes for which the Company or any Subsidiary does not file Company Tax Returns that any one of them is or may be subject become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to taxation by that jurisdiction. None the knowledge of the Company or any Subsidiary, threatened. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has given consented to any currently effective waiver waivers or extensions of any statute of limitations in with respect of Taxes or agreed to any currently effective taxable year of the Company or any Subsidiary. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, there is no Agreement, waiver or consent providing for an extension of time with respect to a Tax the assessment or deficiency. There are no security interests on collection of any of Taxes against the assets of Company or any Subsidiary, and no power of attorney granted by the Company or any Subsidiary that arose in connection with any failure (or alleged failure) respect to pay any Tax except for Permitted Encumbrances.
(c) Company and each Company Subsidiary has withheld and paid all material Taxes required to have been withheld and paid matters is currently in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third partyforce.
(d) None The Company has made available to Acquiror true and complete copies of Company or any Company Subsidiary has knowledge of any facts or circumstances which could give rise to a reasonable expectation that any authority may assess any additional Taxes for any period for which all Company Tax Returns have been filed. There is no dispute and all material written communications with any Governmental Entity relating to any such Company Tax Returns or to any deficiency or claim concerning any liability for Taxes proposed or asserted, irrespective of Company or any Company Subsidiary either the outcome of such matter, but only to the extent such items relate to Tax years (i) claimed which are subject to an audit, investigation, examination or raised by any authority in writing other proceeding, or (ii) as to which Company has knowledge based upon personal contact with any agent of such authority. Company and each Company Subsidiary has delivered to the Acquiror copies of, and Section 3.16 of the Company Disclosure Letter sets forth a complete and accurate list of, Company Tax Returns filed with respect to which the taxable periods statute of Company and any Company Subsidiary ended on or after December 31, 1996; indicates those Company Tax Returns that have been audited; and indicates those Company Tax Returns that currently are the subject of an auditlimitations has not expired.
(e) The unpaid Taxes Except as set forth in Section 3.17(e) of the Company and Disclosure Schedule, neither the Company nor any Company Subsidiary (i) did not, is or has ever been a partner in a partnership or an owner of an interest in an entity treated as a partnership for federal income Tax purposes; (ii) has executed or filed with the IRS any consent to have the provisions of Section 341(f) of the date Code apply to it; (iii) is subject to Section 999 of any financial statements the Code; (iv) is a passive foreign investment company as defined in Section 1296(a) of the Code; or (v) is a party to an Agreement relating to the sharing, allocation or payment of, or indemnity for, Taxes (other than an Agreement the only parties to which are the Company and the Company Subsidiaries furnished to Acquiror pursuant to Section 3.08 of this Merger Agreement, exceed the reserve for any Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the such financial statements (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Company or any Company Subsidiary in filing their Company Tax ReturnsSubsidiaries).
(f) None of Company or any Company Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. None of Company or any Company Subsidiary 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. The Company has complied in all material respects with all rules and each Company Subsidiary has disclosed on its federal income Company Tax Returns all positions taken therein that could reasonably be expected regulations relating to give rise to a substantial understatement the withholding of federal income Tax within the meaning of Section 6662 of the Code. None of Company or any Company Subsidiary is a party to any Tax allocation or sharing agreement. None of Company or any Company Subsidiary (A) has been a member of an "affiliated group," as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) or (B) has any Liability for the Taxes of any Person (other than any of Company) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwiseTaxes.
Appears in 1 contract
Samples: Merger Agreement (McLeodusa Inc)
