Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid. (b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes. (c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries. (d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid. (e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries. (f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes. (g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes). (h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries. (i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction. (j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2). (k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code. (l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 4 contracts
Samples: Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD)
Taxes. (a) All material The Company and each of its Subsidiaries, and ----- any consolidated, combined or unitary group for tax purposes of which the Company or any of its Subsidiaries is or has been a member, has timely filed, taking into account all extensions of time to file, all Tax Returns required to be filed by it in the manner provided by law, except any Tax Return with respect to which no material Taxes were due. All such filed Tax Returns are true, correct and complete in all material respects. The Company and each of its Subsidiaries have timely paid all Taxes shown as due on such Tax Returns, except and, for Taxes that are adequately reserved for on the Company financial statements in accordance with generally accepted accounting principles, for which a notice of deficiency has been received. The Company and each of its Subsidiaries have timely withheld and paid over to the appropriate taxing authority where due all Taxes required to be withheld from amounts owing to any employee, creditor or third party. Except as set forth in the Company Disclosure Schedule, (a) no claim for material unpaid Taxes has become a Lien against the property of the Company or any of its Subsidiaries or is being asserted against the Company or any of its Subsidiaries; (b) no audit, examination, investigation or other proceeding is pending, being conducted, or to the knowledge of the Company, threatened by a Tax authority in connection with any examination of Taxes paid by or on behalf of, or Tax Returns filed by or on behalf of, the Company and its Subsidiaries; (c) no extension or waiver of the statute of limitations on the assessment of any Taxes has been granted by the Company or any of its Subsidiaries and is currently in effect; (d) neither the Company nor any of its Subsidiaries is a party to, is bound by, or has any obligation under, or potential liability with regards to, any Tax sharing agreement, Tax indemnification agreement or similar contract or arrangement and neither the Company nor any Subsidiary has any liability for Taxes under Treasury Regulation Section 1.1502-6 (or an analogous provision of state, local or foreign law), other than Taxes of the Company and its Subsidiaries; (e) no power of attorney has been granted by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material matter relating to Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
; (f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action material deferred intercompany gain or agreed to take loss arising as a result of a deferred intercompany transaction within the meaning of Treasury Regulation Section 1.1502-13 (or similar provision under state, local or foreign law) or any action, nor to excess loss accounts within the knowledge meaning of Treasury Regulation Section 1.1502-19; and (g) neither the Company or nor any of its Subsidiaries are there any facts has been the subject of a Tax ruling or circumstances, determination that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenthas continuing effect.
Appears in 4 contracts
Samples: Merger Agreement (Shopko Stores Inc), Merger Agreement (Merck & Co Inc), Merger Agreement (Merck & Co Inc)
Taxes. (a) All Each of the Company and each of its Subsidiaries has (i) duly and timely filed (taking into account extensions) with the appropriate Taxing Authorities all material Tax Returns required to be filed by it in respect of any Taxes, which Tax Returns were true, correct and complete in all material respects, (ii) duly and timely paid all Taxes shown as due and payable by it on such Tax Returns, (iii) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each of its Subsidiaries through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books and (iv) complied in all material respects with all Laws applicable to the information reporting, payment and withholding of Taxes and has timely withheld and paid over to the respective proper Taxing Authorities all material Taxes required to be so withheld and paid over.
(b) There is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or threatened in writing against or with respect to the Company or any of its Subsidiaries in respect of any Taxes or Tax Returns, in each case, the resolution of which would reasonably be expected to result in a material liability or obligation to the Company or any Subsidiary of the Company and no requests for waivers of time to assess any such Taxes have been timely filed (taking into account granted and are still in effect, or are pending. Neither the Company nor any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing is liable for Taxes of any Person (other than the Company and its Subsidiaries) as a result of being (i) a transferee or successor of such Person, (ii) a member of an affiliated, consolidated, combined or unitary group that includes such Person as a member or (iii) a party to any employeea tax sharing, creditor tax indemnity, tax allocation or similar agreement, whether express or implied, other Person all material Taxes required by applicable Law to be withheld, paid over than contracts or agreements entered into in the ordinary course of business or pursuant to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesterms of commercial financing arrangements.
(c) There are no material Liens on any of the assets or properties of the Company or any of its Subsidiaries that arose in connection with any Tax (other than Liens for Taxes (i) not yet due and payable or (ii) being contested in good faith and for which adequate reserves have been established in accordance with GAAP on the Company Financial Statements).
(d) There are no Tax rulings, requests for rulings, closing agreements or other than Permitted Lienssimilar agreements or rulings with respect to material Taxes (including any gain recognition agreements under Section 367 of the Code or any application for a change in accounting method under Section 481 of the Code) upon the property in effect or assets of filed with any Taxing Authority relating to the Company or any of its Subsidiaries.
(de) No claimSince January 1, assessment2008, deficiency or proposed adjustment for any no material amount of Tax claim has been asserted made by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently such Subsidiary is or may be subject to Tax in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesjurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries transaction that is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into “listed transaction” as defined in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502§1.6011-6 4(b)(2). The transactions contemplated by this Agreement will not trigger any income or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related gain to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of for federal income tax purposes under Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated Code in respect of a distribution by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected occurring prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), extension of time within which to file) and all such Tax Returns (taking into account all amendments thereto) are true, correct correct, and complete in all material respects, and all .
(b) All material Taxes of the Company and its Subsidiaries that are due and payable (whether or not shown on any Tax Return) have been timely paid.
(b) The . Neither the Company and each nor any of its Subsidiaries have withheld from amounts owing to has incurred any employeematerial liability for Taxes since January 1, creditor or 2012 other Person all material Taxes required by applicable Law to be withheld, paid over to than in the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects ordinary course of business consistent with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) past practice. There are no Liens for Taxes (other than Permitted Liens) upon material Tax liens on the property or assets of the Company or any of its SubsidiariesSubsidiaries other than for (i) Taxes not yet due and payable and (ii) Taxes that are being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(c) Each of the Company and its Subsidiaries has timely paid or withheld all material Taxes required to be paid or withheld with respect to their employees, independent contractors, creditors and other third parties (and timely paid over such Taxes to the appropriate Governmental Authority).
(d) Neither the Company nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations or agreed to any outstanding extension of the period, for the assessment or collection of any material Tax and, to the Knowledge of the Company, there has been no written request by a Governmental Authority to execute such a waiver or extension. No claimaudit or other examination or administrative, assessmentjudicial or other proceeding of, or with respect to, any material Tax Return or material Taxes of the Company or any of its Subsidiaries is currently in progress, and neither the Company nor any of its Subsidiaries has been notified in writing of any request for, or, to the Knowledge of the Company, threat of, such an audit or other examination or administrative, judicial or other proceeding. No deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any a Governmental Authority against the Company or any of its Subsidiaries that remains unresolved has not been satisfied by payment, settled or unpaidwithdrawn.
(e) There is no material Tax audit or other examination Each of the Company or any Company’s Subsidiaries formed in the PRC has, in accordance with applicable law, duly registered with the relevant PRC Governmental Authority, obtained and maintained the validity of its Subsidiaries presently all national and local tax registration certificates and complied in progress all material respects with respect all requirements imposed by such Governmental Authority. No submissions made to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority in connection with respect to Taxesobtaining Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments or Tax rebates contained any misstatement or omission that would have adversely affected the granting of such Tax exemptions, preferential treatments or rebates. Neither the Company nor any of its Subsidiaries has made a change No suspension, revocation or cancellation of any method such Tax exemptions, preferential treatments or rebates is pending or threatened. The Transactions will not have any adverse effect on the continued validity and effectiveness of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into will not result in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes claw-back or recapture of any such Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign preferential Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariestreatments.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (ChinaEquity USD Fund I L.P.), Merger Agreement (Cnshangquan E-Commerce Co., Ltd.), Merger Agreement (Mecox Lane LTD)
Taxes. (a) All income and other material Tax Returns required by Law to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The All material amounts of Taxes due and owing by the Company and each its Subsidiaries have been paid, and since the date of the Most Recent Balance Sheet neither the Company nor any of its Subsidiaries has taken any action that would reasonably be expected to result in the incurrence of any material Tax liability outside the ordinary course of business (other than Taxes, if any, resulting from the Transactions).
(c) Each of the Company and its Subsidiaries has (i) withheld and deducted all material amounts of Taxes required to have been withheld from or deducted by it in connection with amounts owing paid or owed to any employee, creditor independent contractor, creditor, shareholder or any other Person all material Taxes required by applicable Law to be withheldthird party; (ii) timely remitted, paid over or will remit on a timely basis, such amounts to the proper appropriate Governmental Authority in a timely manner all such withheld amounts required to have been so paid over Authority; and (iii) complied in all material respects with all applicable withholding and related reporting requirements Law with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its SubsidiariesTax withholding, including all reporting and record keeping requirements.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for is engaged in any audit, administrative proceeding or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority judicial proceeding with respect to Taxes. Neither the Company nor any of its Subsidiaries has made received any written notice from a change Governmental Authority of any method of accounting a dispute or claim with respect to Taxes, other than disputes or claims that have since been resolved, and no such claims have been threatened in writing that have been received by the Company or any Taxesof its Subsidiaries. No written claim has been made, and to the knowledge of the Company, no oral claim has been made, against the Company or any of its Subsidiaries since December 31, 2017, by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to Taxes by, or required to file a Tax Return in, that jurisdiction. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or any of its Subsidiaries and no written request for any such waiver or extension is currently pending.
(ge) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for Income Tax-free treatment under Section 355 of the ordinary course Code (or so much of businessSection 356 of the Code as relates to Section 355 of the Code) not primarily related to Taxes)since December 31, 2018.
(hf) Neither the Company nor any of its Subsidiaries (i) is liable has been a party to any “reportable transaction” (other than a “loss transaction”) within the meaning of Treasury Regulation Section 1.6011-4(b), (ii) has executed or entered into any “closing agreement” or other binding written agreement with respect to Taxes with a Governmental Authority or (iii) has a permanent establishment or branch in a jurisdiction outside the country of its organization.
(g) Except with respect to deferred revenue or prepaid revenues collected by the Company or its Subsidiaries in the ordinary course of business, neither the Company nor 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: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (ii) election pursuant to Section 108(i) of the Code made prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing; or (iv) prepaid amount received prior to the Closing.
(h) There are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(i) Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any other Person (other than the Company and or its Subsidiaries) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), (ii) as a transferee or successor or (iii) by Contract (other than customary commercial Contracts (or Contracts entered into except, in the ordinary course case of business) Contract, for liabilities pursuant to commercial contracts not primarily related relating to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction).
(j) Neither the Company nor any of its Subsidiaries is a party to, is bound by, or has participated any obligation to any Governmental Authority or other Person (other than the Company or its Subsidiaries) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2each case, for any such agreements that are commercial contracts not primarily relating to Taxes).
(k) The Company has not been, is nottaken any action (nor permitted any action to be taken), and immediately prior is not aware of any fact or circumstance, that would reasonably be expected to prevent the Share Exchange Closing will not beFirst Merger and the Second Merger, treated taken together, from constituting an integrated transaction that qualifies as an a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code and the Treasury Regulations thereunder.
(l) As of the date hereof, the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (Cerberus Telecom Acquisition Corp.)
Taxes. (a) All material Tax Returns required to be filed prior to the Closing Date by or with respect to the Company Purchased Companies or any of its Subsidiaries the Business have been duly and timely filed (taking into account any applicable extensions)filed, and all such Tax Returns Returns, as amended (taking into account all amendments thereto) are if applicable), were true, correct and complete in all material respectsrespects when filed. As of the Effective Date and except as set forth in Section 4.14(a) of the Seller Disclosure Letter, and all no Purchased Company has requested any extension of time within which to file any material Taxes due and payable (whether or Tax Return that has not shown on any Tax Return) have yet been paidfiled.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all All material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements by or with respect to the Purchased Companies or the Business have been duly and timely paid, other than such TaxesTaxes as are being contested in good faith by or on behalf of a Purchased Company or an Asset Seller.
(c) There are no Liens for All material Taxes that (other than Permitted Liensi) upon the property or assets of the a Purchased Company or any of its Subsidiaries(ii) in connection with the Business, an Asset Seller, in each case, has been required to collect or withhold have been duly collected or withheld and have been or will be timely and duly paid to the proper Governmental Authority.
(d) No claim, assessment, deficiency statute of limitations in respect of material Taxes of the Purchased Companies or proposed adjustment for any material amount of Tax the Business has been asserted in writing waived. No material Tax or assessed Tax Return of the Purchased Companies or the Business is under audit or examination by any Governmental Authority against the Company Taxing Authority, and no written notice of such an audit or examination has been received by Parent or any of its Subsidiaries that remains unresolved or unpaidAffiliates.
(e) There is are no material Tax audit or other examination of the Company Encumbrances for Taxes upon any Acquired Asset or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing asset of any request or threat for such an audit or Purchased Company other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesthan Permitted Encumbrances.
(f) Neither None of the Company nor Purchased Companies have any of its Subsidiaries has made a request liability for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiariessuch Purchased Company, Parent or Parent’s Affiliates) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), (ii) as a transferee or successor successor, or (iii) by Contract (other than customary commercial Contracts including under any Tax sharing agreement).
(g) None of the Purchased Companies has engaged in any “listed transactions” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(h) None of the Purchased Companies has constituted either a “distributing corporation” or Contracts entered into a “controlled corporation” in a transaction intended to be governed by Section 355 of the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group Code within the common parent of which was or is the Company or any of its Subsidiariespast two years.
(i) Within None of the past three Purchased Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for the post-Closing portion of any Straddle Tax Period or Post-Closing Tax Period as a result of (3i) yearsany change in method of accounting for a Pre-Closing Tax Period pursuant to Section 481(a) of the Code, no (ii) any installment sale or open transaction, (iii) any prepaid amount received or paid or (iv) any election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law) made with respect to any Pre-Closing Tax Period.
(j) None of the Purchased Companies is or has been within the five-year period described by Section 897(c)(1) of the Code a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(k) No written claim has been made by any Governmental Authority where the Company to Parent or any of its Subsidiaries Affiliates by a Taxing Authority in a jurisdiction where any Purchased Company does not file Tax Returns that it such Purchased Company (i) has or has had a permanent establishment in that jurisdiction or (ii) is or may be subject to taxation in by that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries , in each case, which claim has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The not been subsequently withdrawn. No Purchased Company has a permanent establishment in any jurisdiction where such Purchased Company does not beenfile Tax Returns and the Tax Liability related to that Tax Return, is notif filed, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codewould be material.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge Section 4.14(l) of the Company or any Seller Disclosure Letter sets forth the U.S. federal income tax classification of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenteach Purchased Company.
Appears in 3 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Taxes. (a) All Each of the Company and its Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all material Tax Returns required to be filed by it (in each case taking due account of lawful extensions validly obtained), and all such Tax Returns are true, complete and accurate in all material respects and disclose all material Taxes required to be paid by each of the Company and its Subsidiaries for the periods covered thereby. All material Taxes shown to be due on such Tax Returns have been timely paid or have been adequately reserved against on the Financial Statements in accordance with respect GAAP. All deficiencies asserted in writing or written assessments made as a result of any examination of such Tax Returns have been paid or otherwise resolved in full, or have been adequately reserved against on the Financial Statements. All Taxes that the Company and each of its Subsidiaries were required by Law to withhold or collect have been duly withheld or collected and, to the extent required, have been properly paid to the appropriate governmental authority.
(b) The most recent Financial Statements contained in the Filed SEC Documents reflect an adequate reserve, based on GAAP principles, for all material Taxes payable by the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing addition to any employee, creditor reserve for deferred Taxes to reflect timing differences between book and tax items) for all taxable periods and portions thereof through the date of such Financial Statements. There is no agreement or other Person all material document waiving or extending, or having the effect of waiving or extending, the period of assessment or collection of any Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements no power of attorney with respect to such Taxes.
(c) There are no Liens for any Taxes (other than Permitted Liens) upon the property has been executed or assets filed with any Taxing authority by or on behalf of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(ec) There is are no material Tax audit Liens for Taxes (other than for current Taxes not yet due and payable or other examination of Taxes being contested in good faith by the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has appropriate proceeding) on the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes assets of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is bound by any agreement with respect to Taxes, other than customary tax indemnification or other arrangements contained in any credit or other commercial agreements the primary purpose of which does not relate to Taxes.
(fd) Neither the Company nor any of its Subsidiaries has made constituted either a request “distributing corporation” or a “controlled corporation” (in each case within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither tax-free treatment under Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries Code (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course two years prior to the date of business) not primarily related to Taxes) this Agreement or (ii) has ever been in a member distribution which could otherwise constitute part of an affiliated, consolidated, combined a “plan” or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group “series of related transactions” (within the common parent meaning of which was or is Section 355(e) of the Company or any of its SubsidiariesCode) in conjunction with the Merger.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(je) Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2)) (or any corresponding or similar provision of state, local or foreign tax law) for any open tax year.
(kf) None of the Company or any Subsidiary has been a member of any group of corporations filing Tax Returns on a consolidated, combined, unitary or similar basis other than each such group of which it is currently a member.
(g) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as Shares are regularly traded on an “investment company” established securities market within the meaning of Section 368(a)(2)(F1445(b)(6) of the CodeCode (relating to “FIRPTA”).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Taxes. Except as set forth in Section 3.10 of the Seller Disclosure Letter,
(a) All material all Tax Returns required to be filed by or with respect to the Company or any of its and the Subsidiaries have been timely filed (taking into account any applicable extensions)filed, all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, respects and all Taxes shown on such Tax Returns and all other material Taxes due and payable (whether required to be paid by, or not shown that could give rise to a Lien on the assets of, the Company or any Tax Return) of the Subsidiaries have been timely paid.;
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, withheld by the Company and the Subsidiaries have been timely withheld and all withheld Taxes have been timely paid over to the proper Governmental Authority Taxing authorities or properly set aside in a timely manner all accounts for such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements purpose;
(1) there are no waivers or extensions of statutes of limitations or periods of assessment or collection of any Taxes with respect to such Taxes.
(c) There are no Liens for the material Taxes (other than Permitted Liens) upon or the property or assets material Tax Returns of the Company or any of its the Subsidiaries.
(d) No claim, assessmentand no written power of attorney with respect to any such Taxes, deficiency or proposed adjustment for any material amount of Tax has been filed or entered into with any Taxing Authority; (2) the time for filing any Tax Return with respect to the Company or any of the Subsidiaries has not been extended to a due date later than the date of this Agreement; (3) no material Taxes or material Tax Returns with respect to the Company or any of the Subsidiaries are currently the subject of any judicial or administrative proceeding, audit, examination or investigation, and no such proceeding, audit, examination or investigation has been threatened in writing; (4) no Taxing Authority has asserted in writing any deficiency, claim or assessed by issue with respect to Taxes or any Governmental Authority adjustment to Taxes against the Company or any of its the Subsidiaries that with respect to any Taxable period for which the period of assessment or collection remains unresolved open; and (5) no jurisdiction (whether within or unpaid.
(ewithout the United States) There is no material Tax audit or other examination of in which the Company or any of its the Subsidiaries presently in progress with respect to any material Taxes, nor has not 49 filed a particular type of Tax Return has asserted that the Company or any of such Subsidiary is required to file such Tax Return in its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.jurisdiction;
(fd) Neither neither the Company nor any of its the Subsidiaries (i) has made received or applied for a request for Tax ruling or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect pursuant to Taxes. Neither Section 7121 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts Code (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 predecessor provision or any similar provision of state, local or foreign Tax Law Law), in either case that would be binding upon the Company or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in any of the ordinary course of business) not primarily related to Taxes) or Subsidiaries after the Closing Date, (ii) is or has ever been a member of an any affiliated, consolidated, combined or unitary group for purposes of filing for U.S. federal, state Tax Returns or local income Tax purposes, paying Taxes (other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Company).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.,
Appears in 3 contracts
Samples: Acquisition Agreement, Acquisition Agreement, Acquisition Agreement
Taxes. (a) All Parent and each of its subsidiaries have timely filed all material Tax Returns relating to Taxes required to be filed by or with respect to the Company or any on behalf of Parent and each of its Subsidiaries have been timely filed (taking into account subsidiaries with any applicable extensions)Tax authority, all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and Parent and each of its subsidiaries have paid all material Taxes shown to be due and payable (whether or not shown on any Tax Return) have been paidsuch Returns.
(b) The Company Parent and each of its Subsidiaries subsidiaries have withheld from amounts owing with respect to any employeeits employees all federal and state income taxes, creditor or Taxes pursuant to FICA, Taxes pursuant to FUTA and other Person all material Taxes required by applicable Law to be withheld, paid over except such Taxes which are not material to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesParent.
(c) There are no Liens for Taxes (other than Permitted Liens) upon Neither Parent nor any of its subsidiaries has been delinquent in the property payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assets of the Company assessed against Parent or any of its Subsidiariessubsidiaries, nor has Parent or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company any Return of Parent or any of its Subsidiaries subsidiaries by any Tax authority is presently in progress with respect to any material Taxesprogress, nor has the Company Parent or any of its Subsidiaries subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for examination that is reasonably likely to result in any waivers or extensions of any statute of limitations currently in effect with respect adjustment that is material to Parent.
(e) No adjustment relating to any material Taxes Returns filed by Parent or any of the its subsidiaries has been proposed in writing formally or informally by any Tax authority to Company or any of its Subsidiariessubsidiaries or any representative thereof that is reasonably likely to be material to Parent.
(f) Neither the Company Parent nor any of its Subsidiaries subsidiaries has made a request any liability for unpaid Taxes which has not been accrued for or entered into a closing agreementreserved on the Parent Balance Sheet in accordance with GAAP, private letter rulingwhether asserted or unasserted, advance tax ruling contingent or similar agreement otherwise, which is material to Parent, other than any liability for unpaid Taxes that may have accrued since the date of the Parent Balance Sheet in connection with any Governmental Authority with respect to Taxes. Neither the Company nor any operation of the business of Parent and its Subsidiaries has made a change of any method of accounting with respect to any Taxessubsidiaries in the ordinary course.
(g) Neither the Company nor There is no agreement, plan or arrangement to which Parent or any of its Subsidiaries subsidiaries is a party, including this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of Parent or any of its subsidiaries that, individually or collectively, would be reasonably likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Parent is a party or by which it is bound to compensate any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between individual for excise taxes paid pursuant to Section 4999 of the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Code.
(h) Neither the Company Parent nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (if) is liable for Taxes asset (as defined in Section 341(f)(4) of any other Person (other than the Company and its SubsidiariesCode) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owned by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesParent.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or Neither Parent nor any of its Subsidiaries does not file Tax Returns that it subsidiaries is party to or may be subject to taxation in that jurisdictionhas any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(j) Neither Except as may be required as a result of the Company nor Merger, Parent and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 of its Subsidiaries has participated in the Code or any comparable provision under state or foreign Tax laws as a “listed transaction” within result of transactions, events or accounting methods employed prior to the meaning of Treasury Regulation 1.6011-4(b)(2)Closing.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” None of Parent's or its subsidiaries' assets are tax exempt use property within the meaning of Section 368(a)(2)(F168(h) of the Code.
(l) Except as contemplated by this Agreement and Parent has not been distributed in a transaction qualifying under Section 355 of the Transactions contemplated hereby, neither Code within the Company nor any of its Subsidiaries has taken any action or agreed to take any actionlast two years, nor to the knowledge has Parent distributed any corporation in a transaction qualifying under Section 355 of the Company Code within the last two years.
(m) Parent is not aware of any fact, circumstance, plan or any intention on the part of its Subsidiaries are there any facts or circumstances, Parent that could would be reasonably be expected likely to prevent the Transactions Merger from qualifying for as a "reorganization" pursuant to the Intended Tax Treatmentprovisions of Section 368 of the Code.
Appears in 3 contracts
Samples: Merger Agreement (Verisign Inc/Ca), Merger Agreement (Verisign Inc/Ca), Merger Agreement (Network Solutions Inc /De/)
Taxes. (a) All Parent and each of its subsidiaries have timely filed all material Tax Returns relating to Taxes required to be filed by or with respect to the Company or any on behalf of Parent and each of its Subsidiaries have been timely filed (taking into account subsidiaries with any applicable extensions)Tax authority, all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and Parent and each of its subsidiaries have paid all material Taxes shown to be due and payable (whether or not shown on any Tax Return) have been paidsuch Returns.
(b) The Company Parent and each of its Subsidiaries subsidiaries have withheld from amounts owing with respect to any employeeits employees all federal and state income Taxes, creditor or Taxes pursuant to FICA, Taxes pursuant to FUTA and other Person all material Taxes required by applicable Law to be withheld, paid over except such Taxes which are not material to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesParent.
(c) There are no Liens for Taxes (other than Permitted Liens) upon Neither Parent nor any of its subsidiaries has been delinquent in the property payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assets of the Company assessed against Parent or any of its Subsidiariessubsidiaries, nor has Parent or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company any Return of Parent or any of its Subsidiaries subsidiaries by any Tax authority is presently in progress with respect to any material Taxesprogress, nor has the Company Parent or any of its Subsidiaries subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect .
(e) No adjustment relating to any material Taxes of the Company Returns filed by Parent or any of its Subsidiariessubsidiaries has been proposed in writing formally or informally by any Tax authority to Parent or any of its subsidiaries or any Tax or financial representative thereof.
(f) Neither the Company Parent nor any of its Subsidiaries subsidiaries has made a request any liability for unpaid Taxes which has not been accrued for or entered into a closing agreementreserved on the Parent Balance Sheet in accordance with GAAP, private letter rulingwhether asserted or unasserted, advance tax ruling contingent or similar agreement otherwise, which is material to Parent, other than any liability for unpaid Taxes that may have accrued since the date of the Parent Balance Sheet in connection with any Governmental Authority with respect to Taxes. Neither the Company nor any operation of the business of Parent and its Subsidiaries has made a change of any method of accounting with respect to any Taxessubsidiaries in the ordinary course.
(g) Neither the Company nor There is no agreement, plan or arrangement to which Parent or any of its Subsidiaries subsidiaries is a party, including this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of Parent or any of its subsidiaries that, individually or collectively, would be reasonably likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Parent is a party or by which it is bound to compensate any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between individual for excise taxes paid pursuant to Section 4999 of the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Code.
(h) Neither the Company Parent nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (if) is liable for Taxes asset (as defined in Section 341(f)(4) of any other Person (other than the Company and its SubsidiariesCode) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owned by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesParent.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or Neither Parent nor any of its Subsidiaries does not file subsidiaries is party to or has any obligation under any Tax-sharing, Tax Returns that it is indemnity or may be subject to taxation in that jurisdictionTax allocation agreement or arrangement.
(j) Neither Except as may be required as a result of the Company nor Merger, Parent and its subsidiaries have not been and will not be required to include any adjustment in taxable income for any Tax period (or portion thereof) pursuant to Section 481 of its Subsidiaries has participated in the Code or any comparable provision under state or foreign Tax laws as a “listed transaction” within result of transactions, events or accounting methods employed prior to the meaning of Treasury Regulation 1.6011-4(b)(2)Closing.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” None of Parent's or its subsidiaries' assets are tax exempt use property within the meaning of Section 368(a)(2)(F168(h) of the Code.
(l) Except as contemplated by this Agreement and Parent has not been distributed in a transaction qualifying under Section 355 of the Transactions contemplated hereby, neither Code within the Company nor any of its Subsidiaries has taken any action or agreed to take any actionlast two years, nor to the knowledge has Parent distributed any corporation in a transaction qualifying under Section 355 of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent Code within the Transactions from qualifying for the Intended Tax Treatmentlast two years.
Appears in 3 contracts
Samples: Merger Agreement (Eclipsys Corp), Merger Agreement (Eclipsys Corp), Merger Agreement (Neoforma Com Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any employee, creditor or other Person all material Taxes required by applicable Law to be withheldfiled by Company and each of its Subsidiaries with any Tax authority, except such Returns which are not material to Company. Company and each of its Subsidiaries have paid over all Taxes shown to be due on such Returns.
(b) Neither Company nor any of its Subsidiaries has been delinquent in the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all payment of any material respects with all applicable withholding and related reporting requirements with respect to such TaxesTax nor is there any material Tax deficiency outstanding, proposed or assessed against Company or any of its Subsidiaries, nor has Company or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(c) There are no Liens No audit or other examination of any Return of Company or any of its Subsidiaries by any Tax authority is presently in progress, nor has Company or any of its Subsidiaries been notified of any request for such an audit or other examination.
(d) Neither Company nor any of its Subsidiaries has any Liability for any material unpaid Taxes (which has not been accrued for or reserved on Company Balance Sheet in accordance with GAAP, which is material to Company, other than Permitted Liens) upon any Liability for unpaid Taxes that may have accrued since December 31, 1999, in connection with the property or assets operation of the business of Company and its Subsidiaries in the ordinary course.
(e) There is no contract, agreement, plan or arrangement to which Company or any of its Subsidiaries is a party as of the date of this Agreement (including, without limitation, this Agreement), covering any employee or former employee of Company or any of its Subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(f) Neither Company nor any of its Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither Other than as set forth in the Separation Documents, neither Company nor any of its Subsidiaries is a party to or has any obligation under any Tax-sharing, Tax indemnification indemnity or Tax sharing allocation agreement or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)arrangement.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) None of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any assets of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent tax exempt use property within the Transactions from qualifying for meaning of Section 168(h) of the Intended Tax TreatmentCode.
Appears in 3 contracts
Samples: Merger Agreement (Maxtor Corp), Agreement and Plan of Merger and Reorganization (Quantum Corp /De/), Merger Agreement (Quantum Corp /De/)
Taxes. (ai) All material Tax Each of the Company and its subsidiaries has timely filed all Returns required to be filed by or it with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company Governmental Authority and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over Return was complete and complied correct in all material respects at the time of filing.
(ii) Each of the Company and its subsidiaries has paid or caused to be paid to the appropriate Governmental Authority on a timely basis all Taxes which are due and payable, all assessments and reassessments and all other Taxes as are due and payable by it, other than those which are being or have been contested in good faith pursuant to applicable Laws, and in respect of which, in the reasonable opinion of the Company, adequate reserves or accruals in accordance with all applicable withholding and related reporting requirements IFRS have been provided in the Financial Statements.
(iii) No audit, action, investigation, deficiencies, litigation, proposed adjustments have been asserted or, to the knowledge of the Company, threatened with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither subsidiaries, and neither the Company nor any of its Subsidiaries subsidiaries is a party to any action or proceeding for assessment or collection of Taxes and no such event has made a request for been asserted or, to the knowledge of the Company, threatened.
(iv) To the knowledge of the Company no Return of the Company or entered into a closing agreementany of its subsidiaries is under investigation, private letter rulingreview, advance tax ruling audit or similar agreement with examination by any Governmental Authority taxing authority with respect to any Taxes. Neither , and no written notice of any investigation, review, audit or examination by any taxing authority has been received by the Company nor or any of its Subsidiaries has made a change of any method of accounting subsidiaries with respect to any Taxes.
(gv) Neither the Company nor any of its Subsidiaries is a party No Lien for Taxes has been filed or exists with respect to any Tax indemnification assets or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course properties of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessubsidiaries other than for Taxes not yet due and payable or Liens for Taxes that are being contested in good faith by appropriate proceedings.
(ivi) Within There are no currently effective elections, agreements or waivers extending the past three (3) yearsstatutory period or providing for an extension of time with respect to the assessment or reassessment of any Taxes, no written claim has been made the filing of any Return or any payment of Taxes by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionsubsidiaries.
(jvii) Neither the Company nor any of its Subsidiaries has participated Except as set out in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F3.1(z)(vii) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyExeter Disclosure Letter, neither the Company nor any of its Subsidiaries subsidiaries has taken made, prepared and/or filed any action elections, designations or agreed similar filings relating to take Taxes or entered into any actionagreement or other arrangement in respect of Taxes or Returns that could, nor in and of itself, require a material amount to be included in the knowledge income of the Company or any of its Subsidiaries subsidiaries for any period ending after the Effective Time.
(viii) All Taxes that the Company or its subsidiaries has been required to withhold have been duly withheld and have been duly and timely paid to the proper Governmental Authority. Each of the Company and its subsidiaries has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes, payroll taxes and other Taxes payable by it in respect of its employees, agents and consultants, as applicable, and has remitted such amounts to the appropriate Governmental Authority within the time required under applicable Laws. Each of the Company and its subsidiaries have, to the extent required under applicable Laws, duly charged, collected and remitted on a timely basis all Taxes on any sale, supply or delivery whatsoever, made by them.
(ix) There are no Tax rulings relating to the Company or any of its subsidiaries which may affect the Company’s or any of its subsidiaries’ liability for Taxes for any taxable period commencing after the Effective Time.
(x) For all transactions between the Company or its subsidiaries and any Person who is not resident in Canada for purposes of the Tax Act with whom the Company or its subsidiaries was not dealing at arm’s length for purposes of the Tax Act, the Company or its subsidiaries has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act (or comparable provisions of any other applicable legislation).
(xi) No circumstances exist or may reasonably be expected to arise as a result of matters existing before the Effective Time that may result in the Company or any of its subsidiaries being subject to the application of Section 159 or Section 160 of the Tax Act (or comparable provisions of any other applicable legislation).
(xii) None of Sections 78 or 80 to 80.04 of the Tax Act (or comparable provisions of any other applicable legislation) have applied to the Company or any of its subsidiaries, and there any facts or circumstances, that are no circumstances existing which could reasonably be expected to prevent result in the Transactions from qualifying for application of Sections 78 or 80 to 80.04 of the Intended Tax TreatmentAct (or comparable provisions of any other applicable legislation) to the Company or any of its subsidiaries.
(xiii) The Company has not issued any “flow-through shares” (as defined in subsection 66(15) of the Tax Act).
(xiv) The Company does not have an accrued liability under Section 211.91 of the Tax Act in respect of which the Company is late in incurring or renouncing exploration expenses.
(xv) There are no circumstances which exist and would result in, or which have existed and resulted in, Section 17 of the Tax Act applying to the Company or to any of its subsidiaries.
(xvi) None of the Company or any of its subsidiaries is obligated to make any payments or is a party to any agreement under which it could be obligated to make any payment that will not be deductible in computing its income under the Tax Act by virtue of Section 67 of the Tax Act.
(xvii) The Company is a “taxable Canadian corporation” within the meaning of subsection 89(1) of the Tax Act.
Appears in 3 contracts
Samples: Support Agreement (Exeter Resource Corp), Support Agreement (Goldcorp Inc), Support Agreement (Goldcorp Inc)
Taxes. (a) All The Company and each of its Subsidiaries have (i) timely filed or caused to be timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)them, and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (ii) hereof, with respect to Taxes contested in good faith by appropriate Proceedings and for which adequate reserves or accruals have been paidestablished in accordance with GAAP.
(b) The unpaid Taxes of the Company and each its Subsidiaries did not, as of the date of their most recent consolidated financial statements included in the Company SEC Documents prior to the date of this Agreement, materially exceed the reserve or accrual for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of such consolidated financial statements (rather than in any notes thereto). Since the date of their most recent consolidated financial statements, neither the Company nor any of its Subsidiaries have withheld from amounts owing to has incurred any employee, creditor material liability for Taxes outside the ordinary course of business or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over otherwise inconsistent with past custom and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxespractice.
(c) There As of the date of this Agreement, there are no Liens for pending, threatened in writing or ongoing audits, examinations, investigations or other Proceedings by any Governmental Authority in respect of material Taxes (other than Permitted Liens) upon of or with respect to the property Company or assets any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has waived any statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency. No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Return that it is or may be subject to taxation by that jurisdiction in respect of Taxes that would be covered by or the subject of such Tax Return, nor has any such assertion been threatened or proposed in writing and received by the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against All Taxes that the Company or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other third parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of Neither the Company or nor any of its Subsidiaries presently in progress with respect to any material Taxeshas ever been a member of a consolidated, nor has combined or unitary Tax group (other than such a group the Company or any common parent of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of which is the Company or any of its Subsidiaries), and neither the Company nor any of its Subsidiaries has any liability for Taxes of any other Person (other than Taxes of the Company or any Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of foreign, state or local law), as a transferee or successor, by Contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax indemnification sharing, Tax allocation or Tax sharing indemnification agreement or similar Tax agreement arrangement (other than any such an agreement solely or arrangement exclusively between or among the Company and its existing Subsidiaries and or customary commercial Contracts (or Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not primarily related be terminated on or before the Closing Date without any future liability to Taxes)the Company or its Subsidiaries.
(g) There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Encumbrances.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 has participated in or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member party to a transaction that, as of an affiliatedthe date of this Agreement, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than constitutes a group “listed transaction” that is required to be reported to the common parent IRS pursuant to Section 6011 of which was or is the Company or any of its SubsidiariesCode and applicable Treasury Regulations thereunder.
(i) Within the past three last two (32) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken been a party to any action or agreed transaction intended to take any action, nor to the knowledge qualify under Section 355 of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCode.
Appears in 3 contracts
Samples: Merger Agreement (Welbilt, Inc.), Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp)
Taxes. (a) (i) All material Tax Returns required to be filed by or with respect to the Company or any of Parent, its Subsidiaries and each Parent Consolidated Group have been timely filed (taking into account any in accordance with all applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, (ii) Parent, its Subsidiaries and each Parent Consolidated Group have timely paid all material Taxes due or claimed to be due and payable (will have paid all material Taxes of Parent, its Subsidiaries and each Parent Consolidated Group that are due on or before the Closing Date, including any installments or estimated payments due, whether or not shown on any Tax ReturnReturns, (iii) all material Employment and Withholding Taxes and any other material amounts required to be withheld with respect to Taxes have been paideither duly and timely paid to the proper Governmental Entities or properly set aside in accounts for such purpose in accordance with applicable Laws, (iv) the charges, accruals and reserves for Taxes with respect to Parent, its Subsidiaries and each Parent Consolidated Group reflected in the balance sheet, dated as of December 31, 2005, included in Parent’s Annual Report on Form 10-K for the year ended December 31, 2005 (the “Parent Balance Sheet”) are adequate under GAAP, (v) no material deficiencies or other claims for any Taxes asserted or assessed, or, to the Knowledge of Parent, proposed, against Parent or any of its Subsidiaries has not been resolved in all material respects, (vi) there is no material Litigation pending or, to the Knowledge of any of Parent or its Subsidiaries, threatened or scheduled to commence, against or with respect to Parent or any of its Subsidiaries in respect of any Tax or Return, and (vii) since December 31, 1999, neither Parent nor any of its Subsidiaries has received (A) notice from any federal taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns or (B) notice from any state taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns, other than notices with respect to examinations or audits by any state taxing authority that have not had and would not reasonably be expected to have a Material Adverse Effect on Parent.
(b) The Company statutes of limitations for the federal income Tax Returns of Parent, its Subsidiaries and each of its Subsidiaries Parent Consolidated Group have withheld from amounts owing to any employee, creditor expired or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to otherwise have been so paid over and complied in closed for all material respects with all applicable withholding and related reporting requirements with respect to such Taxestaxable periods ending on or before December 31, 1999.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimSince January 1, assessment2000, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company neither Parent nor any of its Subsidiaries has made been a request member of any “affiliated group” (as defined in Section 1504(a) of the Code) or has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only Parent and any Subsidiaries of Parent) provided for under the Laws of the United States, any foreign jurisdiction or entered into a closing agreement, private letter ruling, advance tax ruling any state or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company locality and none of Parent nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither liability for the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision under any state, local or foreign law), or as a successor or transferee.
(d) There are no Tax sharing, allocation, indemnification or similar agreements or arrangements, whether written or unwritten, in effect under which Parent or any of its Subsidiaries could be liable for any material Taxes of any Person other than Parent or any Subsidiary of Parent.
(e) Neither Parent nor any of its Subsidiaries has entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes, nor is any request for such a waiver or extension pending.
(f) There are no Liens for Taxes on any asset of Parent or its Subsidiaries, except for Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries is the subject of or bound by any material private letter ruling, technical advice memorandum, closing agreement or similar material ruling, memorandum or agreement with any taxing authority.
(h) Neither Parent nor its Subsidiaries has entered into, has any liability in respect of, or has any filing obligations with respect to, any “reportable transactions,” as defined in Section 1.6011-4(b)(1) of the Treasury Regulations.
(i) Neither Parent 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 (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or Law), (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date, or (iii) deferred intercompany gain or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law).
(j) Neither Parent nor any of its Subsidiaries has ever been taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that would be reasonably likely to prevent the Merger from qualifying as a member reorganization within the meaning of an affiliated, consolidated, combined or unitary group filing for Section 368(a) of the Code.
(k) Parent has made available to the Company correct and complete copies of (i) all U.S. federal, state or local federal income Tax purposesReturns of Parent and its Subsidiaries relating to taxable periods ending on or after December 31, other than a group 1999, filed through the common parent of which was date hereof and (ii) any material audit report within the last four years relating to any material Taxes due from or is the Company with respect to Parent or any of its Subsidiaries.
(il) Within the past three (3) years, no written claim has been made by any Governmental Authority No jurisdiction where the Company Parent or any of its Subsidiaries does not file Tax Returns a Return has made a claim that it Parent or any of its Subsidiaries is or may be subject required to taxation in that file a Return for a material amount of Taxes for such jurisdiction.
(jm) Neither Within the Company last three years, neither the Parent nor any of its Subsidiaries has participated in owned any material assets located outside the United States or conducted a “listed transaction” within material trade or business outside the meaning of Treasury Regulation 1.6011-4(b)(2)United States.
(kn) The Company All of the transactions which Parent has not been, is not, and immediately prior to the Share Exchange Closing will not be, accounted for as xxxxxx under SFAS 133 have also been treated as an “investment company” within the meaning of hedging transactions for federal income Tax purposes pursuant to Treasury Regulation Section 368(a)(2)(F) of the Code1.1221-2 and have been properly identified as such under Treasury Regulation Section 1.1221-2(f).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (KCS Energy Inc), Merger Agreement (Petrohawk Energy Corp), Agreement and Plan of Merger (Petrohawk Energy Corp)
Taxes. (a) All Except as set forth on Schedule 3.15(a) attached hereto:
(i) As of the date of this Agreement, all material Tax Returns required to be filed by or with respect to the Company or any of and its Subsidiaries have been properly prepared and timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(bii) The Company and each of its Subsidiaries have fully and timely paid all Taxes, except for Taxes, if any, being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(iii) All Taxes required to have been withheld from by Company and its Subsidiaries, including, but not limited to amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, stockholder or other Person all material Taxes required by applicable Law to be withheldPerson, have been timely withheld and paid over to the proper appropriate Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesAuthority.
(civ) There are no Liens for Taxes (other than Permitted Liens) upon the property outstanding agreements or assets waivers extending any statutory period of the limitations applicable to any Tax assessment or deficiency of Company or any of its Subsidiaries.
(d) . No claim, assessment, deficiency or proposed adjustment for any material amount of Tax Person has been asserted in writing or assessed by any Governmental Authority against the granted a power of attorney on behalf of Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently currently in progress force with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, Tax matter and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) that will survive Closing. Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private received any letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither from the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts Internal Revenue Service (or Contracts entered into in the ordinary course of business) not primarily related to Taxesany comparable ruling from any other Governmental Authority).
(hv) Neither the No deficiency for any amount of Tax has been asserted or assessed by any Governmental Authority in writing against Company nor or any of its Subsidiaries (i) or, to the Knowledge of Company, has been threatened or proposed), except for deficiencies that have been satisfied by payment, settled or been withdrawn or that are being contested in good faith and are Taxes for which Company or one of its Subsidiaries, as applicable, has set aside adequate reserves in accordance with GAAP. As of the date of this Agreement, no Action is liable for pending or, to the Knowledge of Company, threatened in writing with respect to any Taxes of any other Person (other than the due from or with respect to Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no . No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it Company or any of its Subsidiaries is or may be subject to taxation in by that jurisdiction.
(jvi) There are no Tax liens upon any of the assets or properties of Company or any of its Subsidiaries, other than Permitted Liens.
(vii) There are no Tax allocation, Tax sharing, Tax indemnity or similar agreements under which Company or any of its Subsidiaries would be liable for Taxes of any other Person (other than Company, another Subsidiary of Company or any other member of the Xxxxxxx US Affiliated Group). Neither the Company nor any of its Subsidiaries has participated in any liability for the Taxes of any other Person (other than Company or another Subsidiary of Company) as a “listed transaction” transferee or successor. Neither Company nor any of its Subsidiaries have been a member of an affiliated group of corporations within the meaning of Treasury Regulation 1.6011-4(b)(2)Code Section 1504 or any comparable or similar provision of state, local or foreign Law other than the Xxxxxxx US Affiliated Group.
(kviii) The Neither Company nor any of its Subsidiaries is or has not beenbeen (A) either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code since September 1, is not, and immediately prior 2010 or (B) a party to the Share Exchange Closing will not be, treated as an a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a)(1) of the Code.
(lix) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Neither Company nor any of its Subsidiaries has taken entered into (A) a “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2) that has given rise to a disclosure obligation under Section 6011 of the Code and the Treasury Regulations promulgated thereunder and that has not been disclosed in the relevant Tax Return of Company or such Subsidiary; or (B) any action or agreed to take any actiontransaction that constitutes a “confidential corporate tax shelter” within the meaning of Section 6111 of the Code, nor and Treasury Regulations Section 301.6111-2, as in effect prior to the knowledge enactment of the American Jobs Creation Act of 2004.
(x) Neither Company or nor any of its Subsidiaries are there will be required to include any facts item of income in, or circumstancesexclude any item of deduction from, that could reasonably be expected taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:
(1) change in method of accounting for a taxable period ending on or prior to prevent the Transactions from qualifying for the Intended Tax Treatment.Closing Date;
Appears in 3 contracts
Samples: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or, to the knowledge of the Company, oral, or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is are no ongoing or pending Legal Proceedings with respect to any material Tax audit or other examination Taxes of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationSubsidiaries, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither None of the Company nor or any of its Subsidiaries has made a request for or entered into a closing agreement, private letter an advance tax ruling, advance tax ruling request for technical advice, a request for a change of any method of accounting or any similar agreement request that is in progress or pending with any Governmental Authority with respect to Taxes. Neither any Taxes of the Company nor any of and its Subsidiaries has made a change of any method of accounting with respect to any TaxesSubsidiaries.
(g) Neither None of the Company nor or any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement (i) solely between the Company and its existing Subsidiaries and customary or (ii) commercial Contracts (or Contracts entered into in the ordinary course principal purpose of business) which is not primarily related to Taxes).
(h) Neither During the past three (3) years, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(i) None of the Company or any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course principal purpose of business) which is not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. United States federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesCompany.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither None of the Company nor or any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) None of the Company or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) None of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor or any of its Subsidiaries will be required to include any material amount in taxable income, exclude any material item of deduction or loss from taxable income, or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) instalment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Closing outside the ordinary course of business, (ii) prepaid amount received or deferred revenue recognized prior to the Closing outside the ordinary course of business, (iii) change in method of accounting for a taxable period ending on or prior to the Closing Date, (iv) “closing agreements” described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed prior to the Closing, or (v) by reason of Section 965(a) of the Code or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law), and to the knowledge of the Company, the IRS has not proposed any such adjustment or change in accounting method.
(n) The Company and its Subsidiaries have not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 3 contracts
Samples: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Taxes. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) All material Each Existing Entity, Existing Management Entity and Subsidiary has timely filed all Tax Returns returns and reports required to be filed by or with respect it (after giving effect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensionsfiling extension properly granted by a Governmental Authority having authority to do so), all . All such Tax Returns (taking into account all amendments thereto) returns and reports are true, correct accurate and complete in all material respects, and each Existing Entity, Existing Management Entity and Subsidiary has paid (or had paid on its behalf) all material Taxes due as required to be paid by it, and payable (whether or not shown on no deficiencies for any Tax Return) Taxes have been paidproposed, asserted or assessed in writing against any Existing Entity, Existing Management Entity or Subsidiary, and no requests for waivers of the time to assess any such Taxes are pending.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for as a result of any unpaid Taxes (other than Permitted Liensstatutory liens for taxes not yet delinquent) upon any of the property or assets of any Existing Entity, Existing Management Entity or Subsidiary.
(i) Each of Xxxxxx Xxxxxxxx, Xxxxxx Properties, Malkin Properties NY and each Existing Entity is and has been since its formation treated as a partnership or entity disregarded as an entity separate from its owner for U.S. federal income tax purposes and (ii) no Governmental Authority responsible for the Company assessment or any collection of its SubsidiariesTax has challenged the treatment described in clause (i).
(d) No claimThere are no pending or, assessmentto the Principals’ Knowledge, deficiency threatened audits, assessments or proposed adjustment other actions for or relating to any liability in respect of income or material amount non-income Taxes of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Existing Entity, any existing Management Entity or any of its their respective Subsidiaries, or any matters under discussion with any Tax authority with respect to income or non-income Taxes that are likely to result in an additional liability for Taxes with respect to any Existing Entity, any existing Management Entity or any of their respective Subsidiaries, and no Existing Entity, Existing Management Entity or any of their respective Subsidiaries that remains unresolved is, or unpaidhas ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar contract.
(e) There is no material Tax audit or other examination Each of the Company or any of its Subsidiaries presently in progress with respect Malkin Properties Conn and Construction have validly elected to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such be an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transactionS corporation” within the meaning of Treasury Regulation 1.6011-4(b)(2Code Section 1361(a)(1) for U.S. federal income tax purposes as of March 1987 (in the case of Malkin Properties Conn) and January 1991 (in the case of Construction).
(k) The Company has not been, is not, and immediately each of Malkin Properties and Construction have maintained their status as an S corporation at all times prior to the Share Exchange Closing will not beDate. Each of Malkin Properties Conn and Construction have validly elected to be an S corporation in all state and local jurisdictions that allow such election where such entities are required to file tax returns, treated and have maintained their respective status as an “investment company” within the meaning S corporation in such jurisdictions at all times thereafter. No tax authority has asserted or threatened in writing to assert that either of Section 368(a)(2)(F) of the Code.
(l) Except Malkin Properties Conn or Construction may not qualify as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action an S corporation for U.S. federal income tax purposes or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentpurposes of any state or local jurisdiction in which such company is required to file a tax return.
Appears in 3 contracts
Samples: Representation, Warranty and Indemnity Agreement, Representation, Warranty and Indemnity Agreement (Empire State Realty Trust, Inc.), Representation, Warranty and Indemnity Agreement (Empire State Realty Trust, Inc.)
Taxes. (a) All Each of the Company and its Subsidiaries has caused to be prepared and timely filed (taking into account valid extensions of time to file) all material Tax Returns required to be filed by or with respect to it, and all such filed Tax Returns are true, complete and accurate in all material respects.
(b) All material Taxes due and payable by the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete paid or adequate reserves in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) respect thereof have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to established in the proper Governmental Authority Company’s financial statements in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects accordance with all applicable withholding and related reporting requirements with respect to such TaxesGAAP.
(c) There are no Liens Each of the Company and its Subsidiaries has properly and timely withheld or collected and timely paid, or is properly holding for timely payment, all material Taxes required to be withheld, collected and paid over by it under applicable Tax Law.
(d) Neither the Company nor any of its Subsidiaries has received from any Taxing Authority written notice of any pending audit, examination, or other than Permitted Liens) upon the property or assets proceeding in respect of Taxes of the Company or any of its Subsidiaries, and no audit, examination or other proceeding in respect of Taxes of the Company or any of its Subsidiaries is ongoing.
(de) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax Taxes has been proposed or asserted in writing or assessed by any Governmental Authority Entity against the Company or any of its Subsidiaries that remains unresolved unpaid or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesunresolved.
(f) Neither the Company nor any of its Subsidiaries has made granted (or is subject to) any waiver or extension of the statute of limitations for the assessment or collection of any material amount of Tax, which waiver or extension is not yet expired.
(g) Within the past four (4) years, no written claim has been received by the Company or any of its Subsidiaries from a request for Governmental Entity in a jurisdiction in which neither the Company nor any of its Subsidiaries files income or entered into a closing agreementfranchise Tax Returns that the Company or any of its Subsidiaries is or may be subject to income or franchise taxation by, private letter rulingor required to file any income or franchise Tax Return in, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. that jurisdiction.
(h) Neither the Company nor any of its Subsidiaries has made been a change member of an affiliated group of corporations filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is the Company) or has any liability for Taxes of any method Person (other than the Company and its current and former Subsidiaries) under U.S. Treasury Regulations Section 1.1502-6 (or any similar provision of accounting with respect to any TaxesU.S. state or local or non-U.S. Tax Law) or by operation of Law as a transferee or successor.
(gi) During the two (2)-year period ending on the date of this Agreement, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(j) Neither the Company nor any of its Subsidiaries is a party to or bound by, or has any Tax indemnification or obligation under, any Tax sharing or similar Tax agreement (allocation contract or arrangement, other than any such agreement (i) contracts solely between among the Company and any of its existing Subsidiaries Subsidiaries, (ii) customary Tax sharing or indemnification provisions in contracts the primary purpose of which does not relate to Taxes and customary commercial Contracts (or Contracts entered into in iii) the ordinary course of business) not primarily related to Taxes)Tax Receivable Agreement.
(hk) Neither There are no closing agreements, gain recognition agreements, private letter rulings, or similar agreements or rulings that have been entered into between any Taxing Authority and any of the Company nor or its Subsidiaries, or issued by any Taxing Authority to the Company or any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is that are binding on the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jl) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken is or will be required to include any action material amount in, or agreed exclude any material amount of deduction from, taxable income for any Tax period ending after the Closing Date as a result of any (1) change in method of accounting pursuant to take Section 481 of the Code (or any action, nor analogous provision under state or foreign Tax Laws) made prior to the knowledge Closing Date, (2) installment sale or open transaction entered into prior to the Closing Date, or (3) prepaid amount received on or prior to the Closing Date.
(n) The Company is treated as a corporation for U.S. federal income tax purposes, and the Company Holdco is treated as a partnership for U.S. federal income tax purposes.
(o) There are no Encumbrances for material Taxes on any of the assets of the Company or any of its Subsidiaries are there any facts or circumstancesSubsidiaries, that could reasonably be expected to prevent other than Permitted Encumbrances.
(p) To the Transactions from qualifying for knowledge of the Intended Tax TreatmentCompany, the Company is not and has not been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code and the applicable Treasury Regulations during the five (5)-year period ending on the Closing Date.
Appears in 3 contracts
Samples: Merger Agreement (Q Power LLC), Merger Agreement (Bitfarms LTD), Merger Agreement (Stronghold Digital Mining, Inc.)
Taxes. (a) All material The Company has filed all Tax Returns that it is required to be have filed by or with respect prior to the Company or date hereof, including any extension of its Subsidiaries have been timely filed (taking into account any applicable extensions)time for the filing thereof, all and such Tax Returns (taking into account all amendments thereto) returns are true, true and correct and complete in all material respects, respects and all material have been prepared in a manner consistent with prior periods. All Taxes due and payable owed as of the Most Recent Balance Sheet Date by the Company (whether or not shown on any Tax Return) have been paidpaid or are accrued for on the Most Recent Balance Sheet in accordance with GAAP consistent with past practice. All Taxes owed by the Company will be paid through the Closing Date.
(b) The There are no security interests on any of the assets of the Company and each of its Subsidiaries have withheld from amounts owing that arose in connection with any failure (or alleged failure) to pay any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTax.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimagreements, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit waivers or other examination arrangements providing for extension of the Company or any of its Subsidiaries presently in progress filing with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there Tax Return. There are no waivers, extensions or written requests for any unexpired waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(gd) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) No claim has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority an authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(je) Neither the The Company nor has timely withheld and paid all Taxes required to have been withheld and paid in connection with any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)amounts paid or owing to any employee, independent contractor, stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.
(kf) The Company is not a party to any action or proceedings by any Governmental Authority for the collection or assessment of Taxes.
(g) There is no dispute or claim concerning any Tax liability of the Company either (i) claimed or raised by any authority in writing or (ii) as to which any of the stockholders and the directors and officers (and employees responsible for Tax matters) thereof has knowledge based upon personal contact with any agent of such authority.
(h) The Company is not a party to any Tax allocation or sharing agreement. The Company has no liability for the Taxes of any Person under Reg. §1.1502 6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(i) The Company has not been, is not, and immediately prior made any change in any method of accounting which could give rise to the Share Exchange Closing will recognition of income or to Tax liability following the date hereof. The Company has not be, treated as made any closing adjustment in connection with an “investment company” within audit which could give rise to the meaning recognition of Section 368(a)(2)(F) of income or to Tax liability following the Codedate hereof.
(lj) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge The unpaid Taxes of the Company or did not, as of the Most Recent Balance Sheet, exceed the reserve for Tax liability (rather than any of its Subsidiaries are there any facts or circumstancesreserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Most Recent Balance Sheet, and do not exceed that could reasonably be expected to prevent the Transactions from qualifying reserve as adjusted for the Intended passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing their Tax TreatmentReturns.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Kensey Nash Corp), Asset Purchase Agreement (Kensey Nash Corp)
Taxes. (a) All (i) The Company and each of its Subsidiaries have duly and timely filed or caused to be filed all income Tax Returns and all other material foreign, federal, state, and local Tax Returns required to be filed by or with respect to any of them; (ii) each of such filed Tax Returns (taking into account all amendments thereto) is true, complete and accurate in all material respects; (iii) all Taxes due and owing by the Company and each of its Subsidiaries (whether or not shown to be due on any Tax Returns) have been timely paid in full; (iv) neither the Company nor any of its Subsidiaries is currently the beneficiary of any extension of time within which to file any Tax Return; and (v) no claim has ever been made by a Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to taxation by that jurisdiction in respect of Taxes that would be covered by or the subject of such Tax Return.
(i) Neither the Company nor any of its Subsidiaries has received written notice of any audit, assessment, examination or other Action from any Taxing Authority and there are no pending or threatened audits, assessments, examinations or other Actions from any Taxing Authority, in each case, in respect of liabilities for Taxes of the Company or any of its Subsidiaries, which have not been fully paid or settled; (ii) there are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens; (iii) with respect to any tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries (nor any predecessor of the Company or any of its Subsidiaries) has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any Tax, nor has any request been made in writing for any such extension or waiver; and (iv) no deficiencies for Taxes with respect to the Company or any of its Subsidiaries have been timely filed (taking into account claimed, proposed or assessed by any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTaxing Authority.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made engaged in or been a request party to a transaction that is or is substantially similar to any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or non-U.S. Tax law in any tax year for or entered into a closing agreementwhich the statute of limitations has not expired.
(d) The unpaid Taxes of the Company and its Subsidiaries did not, private letter rulingas of the December 31, advance tax ruling or similar agreement with 2023 exceed the reserve for Tax liability (excluding any Governmental Authority with respect reserve for deferred Taxes established to Taxesreflect timing differences between book and Tax income) set forth on the face of the consolidated financial statements of the Company included in the Company SEC Documents (rather than in any notes thereto). Neither Since the December 31, 2023, neither the Company nor any of its Subsidiaries has made a change incurred any liability for Taxes outside the ordinary course of business.
(e) The Company and each of its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any method employee, independent contractor, creditor, stockholders of accounting the Company (or any of its Subsidiaries) or other Person.
(f) No power of attorney with respect to any TaxesTaxes of the Company or any of its Subsidiaries is currently in force.
(g) Neither the Company nor any of its Subsidiaries is has ever been a party to any member of an affiliated group filing a consolidated federal income Tax indemnification or Tax sharing or similar Tax agreement Return (other than a group the common parent of which is the Company) or any such agreement solely between similar group for federal, state, local or non-U.S. Tax purposes. Neither the Company and nor any of its existing Subsidiaries and customary commercial Contracts has any liability for the Taxes of any Person (other than Taxes of the Company or its Subsidiaries) (i) under Treasury Regulations Section 1.1502-6 (or Contracts entered into in the ordinary course any similar provision of businessstate, local or non-U.S. law), (ii) not primarily related to Taxes)as a transferee or successor, or (iii) by Contract.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of is, or has been, a party to or bound by any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than excluding customary Tax indemnification provisions in commercial Contracts (or Contracts entered into in the ordinary course of business) business not primarily related relating to Taxes).
(i) Neither the Company nor any of its Subsidiaries is a partner for Tax purposes with respect to any joint venture, partnership, or (ii) has ever been other arrangement or Contract which is treated as a member of an affiliated, consolidated, combined or unitary group filing partnership for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is . No entity classification election pursuant to Treasury Regulations Section 301.7701-3 has been filed with respect to the Company or any of its Subsidiaries.
(i. Section 4.16(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where of the Company or any Disclosure Letter sets forth the entity classification, for U.S. federal and applicable state income tax purposes, of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictioneach Subsidiary of the Company.
(j) Neither the Company nor any of its Subsidiaries has participated will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of use of the installment sale or open transaction method to report a disposition on or prior to the Closing Date, adjustment under Section 481 of the Code resulting from any accounting method change or improper use of an accounting method or agreement with any Tax Authority filed or made on or prior to the Closing Date, any prepaid amount or deferred revenue received on or prior to the Closing, any intercompany transaction or excess loss account described in a “listed transaction” within Section 1502 of the meaning Code (or any corresponding provision of Treasury Regulation 1.6011state, local or non-4(b)(2)U.S. Tax law) or any election under Section 965(h) of the Code.
(k) The None of the Company and any of its Affiliates or predecessors by merger or consolidation has not beenbeen a party to any transaction intended to qualify under Section 355 of the Code at any time in the last two years.
(l) Neither the Company nor any of its Subsidiaries (i) 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 or has ever filed or been the subject of an election pursuant to Section 897(i) of the Code; (ii) has been a or a shareholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, is notlocal or foreign law); (iii) has been a “personal holding company” as defined in Section 542 of the Code (or any similar provision of state, and immediately prior to the Share Exchange Closing will not be, treated as an local or non-U.S. law); (iv) has been a or a shareholder of a “passive foreign investment company” within the meaning of Section 368(a)(2)(F1297 of the Code; or (v) has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.
(m) No Subsidiary of the Company is or has been treated as an “expatriated entity” or “surrogate foreign corporation” under Section 7874 of the Code. No Subsidiary of the Company is or has at any time been a corporation treated as a domestic corporation pursuant to Section 7874 of the Code.
(ln) Except Each of the Company and its Subsidiaries has complied with all transfer pricing rules in all material respects. All documentation required by all relevant transfer pricing laws has been timely prepared by the Company and its Subsidiaries and, if necessary, retained.
(o) The Company has provided or made available to Parent all documentation relating to, and is in full compliance with all terms and conditions of, any Tax exemption, Tax holiday, Tax incentive or other Tax reduction agreement or order of a territorial or non-U.S. government.
(p) No Subsidiary of the Company has engaged in any “extraordinary disposition” or “extraordinary reduction” as contemplated such terms are defined in Treasury Regulations Section 1.245A-5, nor is a successor to any “extraordinary disposition account” pursuant to Treasury Regulations Section 1.245A-5.
(q) No Subsidiary of the Company that is a foreign corporation owned within the meaning of Section 958(a) by this Agreement and the Transactions contemplated hereby, neither Company or a United States Subsidiary of the Company owns United States property within the meaning of Section 956 of the Code.
(r) Neither the Company nor any of its Subsidiaries (i) has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, action that could would reasonably be expected to prevent the Transactions Mergers from qualifying for the Intended Tax Treatment or (ii) has any Knowledge of any fact or circumstance that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment, in each case, other than as contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Matterport, Inc./De), Merger Agreement (Matterport, Inc./De), Merger Agreement (Costar Group, Inc.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries SPAC have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have SPAC has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for any material Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its SubsidiariesSPAC.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries SPAC that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries SPAC presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries SPAC been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesSPAC.
(f) Neither the Company nor any of its Subsidiaries SPAC has not made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries SPAC has not made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries SPAC is not a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither SPAC has not been a party to any transaction treated by the Company nor any parties as a distribution of its Subsidiaries stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) SPAC (i) is not liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever never been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesSPAC.
(ij) Within the past three (3) yearsSince its inception, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries SPAC does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries SPAC has not participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyTransactions, neither the Company nor any of its Subsidiaries SPAC has not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries SPAC are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (Blue World Holdings LTD), Merger Agreement (Blue World Acquisition Corp), Merger Agreement (Blue World Holdings LTD)
Taxes. (a) All material The Target and its Subsidiaries have timely filed, or have caused to be timely filed on their behalf, all Tax Returns that are or were required to be filed by or with respect to any of them, either separately or as a member of group of corporations, pursuant to applicable Legal Requirements. All Tax Returns filed by (or that include on a consolidated basis) the Company Target and its Subsidiaries were (and, as to a Tax Return not filed as of the date hereof, will be) in all respects true, complete and accurate. To the Knowledge of the Warrantors, there are no unpaid Taxes claimed to be due by any Governmental Authority in charge of taxation of any jurisdiction, nor any claim for additional Taxes for any period for which Tax Returns have been filed, and none of their officers or directors, or the Selling Shareholders, or any of their officers or directors (if an entity), know of any basis for any such claim.
(b) Neither the Target nor any of its Subsidiaries has received any notice that any Governmental Authority will audit or examine (except for any general audits or examinations routinely performed by such Governmental Authorities), seek information with respect to, or make material claims or assessments with respect to any Taxes for any period since January 1, 2002.
(c) The Target Financial Statements reflect an adequate reserve for all Taxes known to be payable by the Target and its Subsidiaries (in addition to any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all taxable periods and portions thereof through the date of such financial statements. None of the Target or its Subsidiaries is a party to or bound by any Tax indemnity, Tax sharing or similar agreement and the Target and its Subsidiaries currently have no material liability and will not have any material liabilities for any Taxes of any other Person under any agreement or by the operation of any Law. No deficiency with respect to any Taxes has been proposed, asserted or assessed against the Target or its Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(d) Neither the Target nor any of its Subsidiaries has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed. Neither the Target nor any of its Subsidiaries has executed any outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns. No power of attorney currently in force has been granted by the Target or any of its Subsidiaries have been timely filed (taking into account concerning any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries[RESERVED].
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company Target nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into currently engaged in the ordinary course conduct of business) not primarily related to Taxes) a trade or business within the United States; (ii) is a corporation or other entity organized or incorporated in the United States; and (iii) owns or has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or owned any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation United States real property interests described in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) 897 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (Pantheon China Acquisition Corp.), Merger Agreement (Pantheon Arizona Corp.), Merger Agreement (China Cord Blood Corp)
Taxes. (a) All material Tax Returns federal, state, local and foreign tax returns required to be filed by or with respect to the Company on behalf of LISB or any of its Subsidiaries have been timely filed (taking into account or requests for extensions have been timely filed and any applicable extensions)such extension shall have been granted and not have expired, and all such Tax Returns (taking into account all amendments thereto) filed returns are true, correct complete and complete accurate in all material respects. All taxes shown on such returns, all taxes required to be shown on returns for which extensions have been granted, and all material Taxes due and payable (whether other taxes required to be paid by LISB or not shown on any Tax Return) of its Subsidiaries, have been paid.
paid in full or adequate provision has been made for any such taxes on LISB's balance sheet (b) The Company in accordance with generally accepted accounting principles). For purposes of this Section 2.03(i), the term "taxes" shall include all income, franchise, gross receipts, real and personal property, real property transfer and gains, wage and employment taxes. As of the date of this Agreement, there is no audit, examination, deficiency, or refund litigation with respect to any taxes of LISB or any of its Subsidiaries, and no claim has been made by any authority in a jurisdiction where LISB or any of its Subsidiaries do not file tax returns that LISB or any such Subsidiary is subject to taxation in that jurisdiction. All taxes, interest, additions, and penalties due with respect to completed and settled examinations or concluded litigation relating to LISB or any of its Subsidiaries have been paid in full or adequate provision has been made for any such taxes on LISB's balance sheet (in accordance with generally accepted accounting principles). LISB and its Subsidiaries have not executed an extension or waiver of any statute of limitations on the assessment or collection of any material tax due that is currently in effect. LISB and each of its Subsidiaries has withheld and paid all taxes required to have been withheld from and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, stockholder or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationthird party, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any LISB and each of its Subsidiaries has made a request for or entered into a closing agreementtimely complied with all applicable information reporting requirements under Part III, private letter ruling, advance tax ruling or Subchapter A of Chapter 61 of the Code and similar agreement with any Governmental Authority with respect to Taxesapplicable state and local information reporting requirements. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company LISB nor any of its Subsidiaries (i) is liable for Taxes has made an election under Section 341(f) of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateCode, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliatedmade any payment, consolidatedis obligated to make any payment, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is a party to any agreement that could obligate it to make any payment that would not be deductible under Section 280G of the Company Code, (iii) has issued or assumed any obligation under Section 279 of the Code, any high yield discount obligation as described in Section 163(i) of the Code or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011registration-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” required obligation within the meaning of Section 368(a)(2)(F163(f)(2) of the Code that is not in registered form, or (iv) is or has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Merger Agreement (Astoria Financial Corp), Merger Agreement (Astoria Financial Corp), Merger Agreement (Long Island Bancorp Inc)
Taxes. (a) All (i) Each of the Company and each Company Subsidiary has timely filed, taking into account any extensions, all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all and such Tax Returns (taking into account all amendments thereto) are true, correct accurate and complete in all material respects, ; (ii) each of the Company and each Company Subsidiary has paid all material Taxes required to have been paid by it other than Taxes that are not yet due or that are being contested in good faith in appropriate proceedings; and payable (whether or not shown on iii) no material deficiency for any Tax Return) have has been paidasserted or assessed by a taxing authority against the Company or any Company Subsidiary which deficiency has not been paid or is not being contested in good faith in appropriate proceedings.
(b) The No material Tax Return of the Company or any Company Subsidiary is under audit or examination by any taxing authority, and no written notice of such an audit or examination has been received by the Company or any Company Subsidiary that remains outstanding. No deficiencies for any material Taxes have been proposed, asserted or assessed against the Company or any Company Subsidiary that were not finally resolved in full prior to the date of, with all consequences thereof properly reflected in accordance with GAAP in, the most recent Company SEC Documents, and no requests for waivers of the time to assess any such Taxes are pending. No other procedure, proceeding or contest of any refund or deficiency in respect of material Taxes is pending in or on appeal from any Governmental Entity.
(c) Each of the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and Company Subsidiary has complied in all material respects with all applicable Laws relating to the collection, payment and withholding and related reporting requirements with respect to such remittances of Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency Neither the Company nor any Company Subsidiary is a party to or proposed adjustment for is otherwise bound by any material amount of Tax has been asserted in writing sharing, allocation or assessed by any Governmental Authority against indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries or any customary Tax payment or indemnification provisions in Contracts the primary purpose of its Subsidiaries that remains unresolved or unpaidwhich does not relate to Taxes).
(e) There is no material Tax audit Within the past three years, neither the Company nor any Company Subsidiary has been a “distributing corporation” or other examination a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesCode.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries Subsidiary has participated in a “listed transaction” or a “transaction of interest” within the meaning of Treasury Regulation Section 1.6011-4(b)(24(b).
(kg) The Company Since January 1, 2014, no claim has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated been made by this Agreement and the Transactions contemplated hereby, neither a taxing authority in a jurisdiction where the Company nor or any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of Company Subsidiary does not file Tax Returns that the Company or any of its the Company Subsidiaries are there any facts is or circumstances, that could reasonably may be expected subject to prevent the Transactions from qualifying for the Intended Tax TreatmentTaxes assessed by such jurisdiction.
Appears in 3 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Hawaiian Telcom Holdco, Inc.), Merger Agreement (Cincinnati Bell Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries Seller have been timely filed (taking into account any applicable extensions), all such filed. Such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material . All Taxes due and payable owing by the Seller (whether or not shown on any Tax Return) have been timely paid.
(b) The Company Seller has withheld and paid each of its Subsidiaries Tax required to have been withheld from and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, customer, shareholder or other Person all material Taxes required by applicable Law to be withheldparty, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all information reporting and backup withholding provisions of applicable withholding and related reporting requirements with respect to such TaxesLaw.
(c) There are no Liens for The Seller has collected all sales, use, value added, goods and services, and similar Taxes (other than Permitted Liens) upon required to be collected and timely remitted all such Taxes collected to the property or assets of the Company or any of its Subsidiariesappropriate Governmental Authority in accordance with applicable Law.
(d) No claim, assessment, deficiency extensions or proposed adjustment for waivers of statutes of limitations have been given or requested with respect to any material amount Taxes of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidSeller.
(e) There is no material Tax audit All deficiencies asserted, or other examination of assessments made, against the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing Seller as a result of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for examinations by any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesGovernmental Authority have been fully paid.
(f) Neither The Seller is not a party to any Action by any Governmental Authority. There are no pending or threatened Actions by any Governmental Authority. No Governmental Authority in a jurisdiction where the Company nor any of its Subsidiaries Seller does not file Tax Returns has made a request for any claim that the Seller is or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect may be subject to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTax in that jurisdiction.
(g) Neither the Company nor There are no Encumbrances for Taxes upon any of its Subsidiaries the Purchased Assets nor is a party to any Tax indemnification or Tax sharing or similar Tax agreement Governmental Authority in the process of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than any such agreement solely between the Company for current Taxes not yet due and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxespayable).
(h) Neither the Company nor any of its Subsidiaries (i) is liable The Seller has no Liability for Taxes of any other Person (other than the Company and its Subsidiaries) arising under Treasury Regulation Section 1.1502-6 or any similar provision Contract, by operation of statelaw, local or foreign Tax Law or as by reason of being a transferee or successor or by transferee, or otherwise. None of the Assumed Liabilities is a Contract (other than customary commercial Contracts (regarding the sharing or Contracts entered into in the ordinary course allocation of business) not primarily related to either Liability for Taxes or payment of Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within None of the past three (3) years, no written claim has been made Purchased Assets to be acquired by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither Buyer from the Company nor any of its Subsidiaries has participated in a Seller constitute “listed transactiontaxable Canadian property” within the meaning of Treasury Regulation 1.6011-4(b)(2)the ITA.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.)
Taxes. (a) All material (i) The Company and each Company Subsidiary has (x) duly and timely filed or has caused to be filed with the appropriate Governmental Entities or Taxing Authorities all Tax Returns required to be filed by or with them in respect to the Company or of any of its Subsidiaries have been timely filed (taking into account any applicable extensions)material Taxes, all such which Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respects, or requests for extensions to file such Tax Returns have been timely filed, granted and have not expired and (y) duly and timely paid in full or withheld (or the Company has paid or withheld on the Company Subsidiaries’ behalf) all material Taxes that are due and payable by them, other than Taxes that are being contested in good faith in appropriate proceedings or for which adequate reserves are reflected, in accordance with GAAP, in the Company Financial Statements; (whether ii) none of the Company or not shown on any Tax Return) have been paid.
(b) The Company and each Subsidiary has any extension or waiver of its Subsidiaries have withheld from amounts owing the limitation period applicable to any employee, creditor the payment or other Person all collection of material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority currently in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
effect; (ciii) There there are no Liens for material Taxes (other than Permitted Liens) upon the any property or assets of the Company or any Company Subsidiary, except for Permitted Liens; (iv) there are no requests for rulings or determinations in respect of its Subsidiaries.
any material Taxes or material Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such Taxes or Tax Returns; (dv) No claim, assessment, no deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Entity or Taxing Authority in writing against the Company or any of its Subsidiaries that remains unresolved Company Subsidiary, except for deficiencies which have been satisfied by payment, settled or unpaid.
been withdrawn, or which are being contested in good faith by appropriate proceedings or for which adequate reserves are reflected, in accordance with GAAP, in the Company Financial Statements; (evi) There neither the Company nor any Company Subsidiary is no party to any material Tax audit tax sharing agreements, tax indemnity agreements or other examination similar agreements (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries); (vii) none of the Company or any Company Subsidiary has any liability for material Taxes as a result of its Subsidiaries presently in progress with respect to having been a member of any material Taxesaffiliated group within the meaning of Section 1504(a) of the Code, nor has or any similar affiliated or consolidated group for tax purposes under state, local or foreign Law (other than a group the common parent of which is the Company or any of its Subsidiaries been notified in writing of Company Subsidiary), or has any request or threat liability for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any the material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its or the Company Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law), or as a transferee or successor successor, by contract or by Contract otherwise; (other than customary commercial Contracts (or Contracts entered into in the ordinary course viii) none of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any Company Subsidiary will be required to include in income after the Closing any material adjustment pursuant to Section 481 of its Subsidiaries.
the Code (ior any similar provision of state, local or foreign Law) Within the past three (3) years, no written claim has been made by any Governmental Authority where reason of a change in accounting method by the Company or any Company Subsidiary prior to Closing; and (ix) (w) TNCLP is a publicly traded partnership, the interests of its Subsidiaries does which are either traded on an established securities market or readily tradable on a secondary market (or the substantial equivalent thereof), (x) TNCLP is treated as a partnership for U.S. federal income tax purposes, (y) TNCLP has satisfied the passive income test of Section 7704(c) of the Code for each taxable year after 1987 in which it was a publicly traded partnership and (z) TNCLP has not file Tax Returns that it is registered as a management company or may be subject to taxation in that jurisdictionunit investment trust under the Investment Company Act of 1940, as amended.
(jb) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).
(kc) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any Company Subsidiary has been a “controlled corporation” or a “distributing corporation” in any distribution of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge stock qualifying for tax-free treatment under Section 355 of the Code occurring during the two-year period ending on the date hereof.
(d) The representations and warranties in this Section 3.13 and Section 3.15 are the exclusive representations and warranties by the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected and each Company Subsidiary relating to prevent the Transactions from qualifying for the Intended Tax Treatmentmatters.
Appears in 3 contracts
Samples: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Taxes. (a) All Target and each of its Subsidiaries has duly and timely filed (or there has been filed on its behalf) with, or duly requested an extension of time for such filing from, the appropriate Governmental Authorities all material Tax Returns (including all relevant elections associated with those Tax Returns) required to be filed by it or with respect to the Company its income, properties or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)operations, and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material Taxes due of Target and payable (each of its Subsidiaries whether or not shown to be due on any such Tax Return) Returns have been paidtimely paid in full.
(b) The Company Target and each of its Subsidiaries has, in accordance with all applicable Laws, withheld and timely paid to the appropriate Governmental Authority all material Taxes required to have been withheld from and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, shareholder or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesPerson.
(c) There are no Liens (except for Taxes (other than Permitted Liens) for Taxes upon the property or assets any of the Company assets or properties of Target or any of its Subsidiaries.
(d) No claimExcept as set forth in Section 3.19(d) of the Target Disclosure Letter, assessmentneither Target nor any of its Subsidiaries has requested any extension of time within which to file any Tax Return in respect of any taxable year which has not since been filed, deficiency and no outstanding waivers or proposed adjustment for comparable consents regarding the application of the statute of limitations with respect to any material amount Taxes or Tax Returns have been given by or on behalf of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Target or any of its Subsidiaries that remains unresolved or unpaidare still in effect other than those that arise by filing a Tax Return by the extended due date.
(e) There Except as set forth on Section 3.19(e) of the Target Disclosure Letter, there is no material Tax audit audit, action, suit, proceeding or other examination investigation now pending, or to the Knowledge of the Company or any of its Subsidiaries presently in progress Target, threatened with respect regard to any material Taxes, nor has the Company Tax or any Tax Returns of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company Target or any of its Subsidiaries.
(f) Neither the Company ; and neither Target nor any of its Subsidiaries has made a request for or entered into a closing agreementreceived written notice to the effect that, private letter rulingand Target has no Knowledge that, advance tax ruling or similar agreement with any Governmental Authority with respect intends to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesconduct such an audit or investigation.
(gf) Neither the Company nor any of its Subsidiaries is a party to any All Tax indemnification deficiencies, if any, which have been claimed, proposed or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company asserted against Target or any of its Subsidiaries does not file Tax Returns that it is by any Governmental Authority have been fully paid or may be subject to taxation are being contested in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not beengood faith by appropriate proceedings, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.adequately reserved for
Appears in 3 contracts
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.)
Taxes. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) All material Tax Returns required to be filed by or with respect to on behalf of any of the Company Group Companies or any of its their Subsidiaries have been duly and timely filed (taking into account any applicable extensionsextensions of time for filing), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material such filed Tax Returns are complete and accurate in all respects. All Taxes that are due and payable by any of the Group Companies or any of their Subsidiaries (whether or not shown on any Tax Returnother than Taxes being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in accordance with GAAP) have been paidpaid in full. All withholding Tax requirements imposed on or with respect to any of the Group Companies or any of their Subsidiaries have been satisfied in full, and the Group Companies and their Subsidiaries have complied in all respects with all information reporting (and related withholding) and record retention requirements.
(bii) The Company and each There is not in force any waiver or agreement for any extension of its Subsidiaries have withheld from amounts owing to time for the assessment or payment of any employee, creditor Tax by any of the Group Companies or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesany of their Subsidiaries.
(ciii) There are is no Liens outstanding claim, assessment or deficiency against any of the Group Companies or any of their Subsidiaries for any Taxes (other than Permitted Liens) upon that have been asserted or, to the property or assets Knowledge of the Company or Holdings (as applicable), threatened in writing by any Taxing Authority. There are no Proceedings pending or, to the Knowledge of the Company or Holdings (as applicable), threatened in writing regarding any Taxes of any of its the Group Companies or any of their Subsidiaries.
(div) No claim, assessment, deficiency or proposed adjustment for any material amount None of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Group Companies or any of its their Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any material Tax indemnification allocation, sharing or indemnity contract or arrangement (not including, for the avoidance of doubt (i) an agreement or arrangement solely between or among the Group Companies and/or any of their Subsidiaries, or (ii) any customary Tax sharing or similar indemnification provisions contained in any commercial agreement entered into in the Ordinary Course and not primarily relating to Tax). None of the Group Companies or any of their Subsidiaries have (x) been a member of an affiliated group filing a consolidated U.S. federal income Tax agreement Return (other than a group the common parent of which is or was any of the Group Companies or any of their Subsidiaries) or (y) any material liability for Taxes of any Person (other than any such agreement solely between of the Company and its existing Subsidiaries and customary commercial Contracts (Group Companies or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its their Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor successor.
(v) None of the Group Companies or by Contract (other than customary commercial Contracts any of their Subsidiaries have participated, or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2) (or Contracts entered into any similar provision of state, local or foreign Law).
(vi) None of the Group Companies or any of their Subsidiaries have constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the ordinary course two (2) years prior to the date of business) not primarily related to Taxes) this Agreement or (ii) has ever been as part of a member “plan” or “series of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group related transactions” (within the common parent meaning of which was or is Section 355(e) of the Company or any of its SubsidiariesCode) in conjunction with the Transactions.
(ivii) Within the past three (3) years, no No written claim has been made by any Governmental Taxing Authority in a jurisdiction where any of the Company Group Companies or any of its their Subsidiaries does not currently file a Tax Returns Return that it is or may be subject to taxation any Tax in that such jurisdiction, nor has any such assertion been threatened or proposed in writing and received by any of the Group Companies or any of their Subsidiaries.
(jviii) Neither None of the Company nor Group Companies or any of its their Subsidiaries have requested, has participated received or is subject to any written ruling of a Taxing Authority that will be binding on it for any taxable period ending after the Closing Date or has entered into any “closing agreement” as described in a “listed transaction” within Section 7121 of the meaning Code (or any similar provision of Treasury Regulation 1.6011-4(b)(2state, local or foreign Law).
(kix) There are no Encumbrances for Taxes on any of the assets of any of the Group Companies or any of their Subsidiaries, except for Permitted Encumbrances.
(x) Except as provided on Schedule 4.12(a)(x) of the Company Disclosure Letter, none of the Group Companies nor any of their Subsidiaries has availed itself of the benefit of any Tax credits or deferred the payment of any Taxes pursuant to COVID-19 Measures.
(xi) The Company has not been, is notis, and immediately prior to the Share Exchange Closing will not behas been since formation, treated properly classified for U.S. federal income tax purposes as a corporation.
(xii) Holdings is, and has been since formation, properly classified for U.S. federal income tax purposes as an entity disregarded as separate from its owner or a partnership.
(xiii) Except as provided on Schedule 4.12(a)(xiii) of the Company Disclosure Letter, all of the Subsidiaries of Holdings (other than Brix Federal Leasing Corporation) are, and have been since formation, properly classified for U.S. federal income tax purposes as disregarded entities.
(b) None of the Group Companies or any of their Subsidiaries are aware of the existence of any fact, or has taken or agreed to take any action, that would reasonably be expected to prevent or impede the Integrated Mergers, taken together, from qualifying as a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code.
(lc) Except as contemplated by Holdings has or will have in effect an election under Section 754 of the Code for the taxable year in which the Merger occurs. Notwithstanding any other provisions of this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge contrary, the representations and warranties made in this Section 4.12 and in Section 4.10 are the sole and exclusive representations and warranties of the Company or any of its Group Companies and their Subsidiaries are there any facts or circumstances, that could reasonably be expected with respect to prevent the Transactions from qualifying for the Intended Tax TreatmentTaxes.
Appears in 3 contracts
Samples: Merger Agreement (Vine Energy Inc.), Merger Agreement (Chesapeake Energy Corp), Merger Agreement (Chesapeake Energy Corp)
Taxes. (a) All U.S. federal Tax Returns for Income Taxes and other material Tax Returns that have been required to be filed by or with respect to on behalf of the Company or any of its Subsidiaries Transferred Subsidiary have been timely filed with the appropriate Tax Authority (taking into account after giving effect to any applicable extensions), all valid extensions of time within which to make such filings) and each such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its the Transferred Subsidiaries have withheld from amounts owing to any employee, creditor or other Person has paid all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to that have been so paid over due and payable by it (whether or not shown on a Tax Return).
(c) Neither the Company nor any Transferred Subsidiary has waived in writing any statute of limitations in respect of U.S. federal Income Taxes or other material Taxes which waiver is currently in effect other than (i) as a result of the Company and the Transferred Subsidiaries being members of any Non-Transferred Group or (ii) with respect to non-income Taxes, in the Ordinary Course of Business, as applicable.
(d) The Company and each of the Transferred Subsidiaries have complied in all material respects with all applicable Laws relating to the withholding of Taxes and related reporting requirements with respect have duly and timely withheld from employees’ salaries, wages and other compensation and have paid over to such Taxesthe appropriate Tax Authority all material amounts required to be so withheld and paid over.
(ce) There are no Liens for Taxes (other than Permitted Liens) upon the property All material deficiencies asserted in writing or assets material assessments made in writing as a result of any examinations by any Tax Authority of Tax Returns of the Company or any of its Subsidiaries.
(d) No claimthe Transferred Subsidiaries have been fully paid, assessment, deficiency and no other material audits or proposed adjustment for any material amount of Tax has been asserted in writing or assessed investigations by any Governmental Tax Authority against the Company or relating to any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination Returns of the Company or any of its the Transferred Subsidiaries presently are in progress with respect to any material Taxes, nor has which the Company or any of its the Transferred Subsidiaries been notified in writing of any request or threat for such an audit or has received written notice from a Tax Authority other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes than as a result of the Company or and the Transferred Subsidiaries being members of any of its SubsidiariesNon-Transferred Group.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries Transferred Subsidiary is a party to any Tax indemnification or allocation, Tax sharing sharing, Tax indemnity or similar Tax agreement (pursuant to which it will have any obligation to make any payments after the Closing Date to any person other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts any Transferred Subsidiary. For purposes of this representation, an agreement described in the previous sentence does not include any Contract entered into by the Company or any Transferred Subsidiary in the ordinary course Ordinary Course of business) Business that does not primarily related relate to Taxes), but such an agreement shall include any Contract relating to the acquisition or disposition (including by way of spin-off or split-off) of entities or substantially all of the assets of an entity that includes an obligation to make payments in respect of Tax.
(g) There are no Tax rulings, requests for rulings or closing agreements in effect with any Tax Authority relating to the Company or any Transferred Subsidiary which will materially affect the Company’s or any Transferred Subsidiary’s liability for Taxes for any period after the Closing Date.
(h) Neither the Company nor any Transferred Subsidiary is required to make any adjustment pursuant to Section 481(c) of its Subsidiaries the Code for any Post-Closing Taxable Period as a result of a change in accounting method.
(i) is liable There are no Liens for Taxes upon any assets of the Company or any other Person (Transferred Subsidiary other than the Company liens in respect of current ad valorem property Taxes not yet due and its Subsidiariespayable.
(j) under Treasury Regulation Section 1.1502-6 or No claim has been made in writing by any similar provision of state, local or foreign Tax Law or as Authority in a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into jurisdiction in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where Transferred Subsidiaries does not pay Tax or file a Tax Return that the Company or any of its the Transferred Subsidiaries does not file Tax Returns that it is or may be subject to taxation in Tax by that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Arch Capital Group Ltd.)
Taxes. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Each of the Company and its Subsidiaries has (i) timely filed all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) To the knowledge of the Company, there are no U.S. federal, state, local or non-U.S. audits or examinations of any Tax Return of the Company or its Subsidiaries pending and neither the Company nor any Subsidiary has received written notice of any such audit or examination. No claim for unpaid Taxes has been asserted in writing against the Company or any of its Subsidiaries by a Governmental Authority, other than any claim that has been resolved.
(c) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so withheld from payments made to its employees, independent contractors, creditors, shareholders and other Third Parties and, to the extent required, such Taxes have been paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthe relevant Governmental Authority.
(cd) There are no Liens for outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets of deficiencies against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification written agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of Taxes, except for any such agreement agreements that (i) are solely between the Company and and/or any of its existing Subsidiaries and customary commercial Contracts Subsidiaries, (or Contracts ii) will terminate as of the Closing, (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes or (iv) are Tax allocation, indemnity or warranty provisions contained in commercial contracts the principal subject matter of which is not primarily related Taxes.
(f) There are no Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Documents, except for Permitted Liens.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to Taxesbe governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into has been in the ordinary course of businesspast five (5) not primarily related to Taxes) or (ii) has ever been years a member of an affiliated, consolidated, combined or unitary a group filing for U.S. federal, state or local income Tax purposes, (other than a group the common parent of which was is the Company or is one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return or (ii) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or non-U.S. Law or as a transferee or successor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Samples: Purchase Agreement, Purchase Agreement (Qualcomm Inc/De), Purchase Agreement (NXP Semiconductors N.V.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries (i) have prepared in good faith and timely filed, taking into account any extension of time within which to file, all material Tax Returns required to be filed (or such Tax Returns have been filed on their behalf) with the appropriate Governmental Authority and all such Tax Returns are complete and accurate in all material respects, (ii) have paid all Taxes required to have been paid by them other than Taxes that are not yet due or that are being contested in good faith in appropriate proceedings and have been adequately reserved in accordance with U.S. GAAP, and (iii) have withheld from and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor creditor, stockholder, independent contractor or other Person all material Taxes required by applicable Law to be withheld, paid over to third party;
(b) neither the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements Company nor any of its Subsidiaries has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency and there has been no request by a Governmental Authority to execute such Taxes.a waiver or extension;
(c) There to the Knowledge of the Company, no deficiency with respect to Taxes has been proposed, asserted or assessed against the Company or any of its Subsidiaries, and there are no pending or threatened in writing disputes, claims, audits, examinations or other proceedings regarding Taxes of the Company and its Subsidiaries or the assets of the Company and its Subsidiaries;
(d) there are no Liens for Taxes (other than Permitted Liens) upon the any property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.other than Permitted Liens;
(e) There is no the Company has made available to Parent copies of all U.S. federal consolidated income and other material Tax audit or other examination of Returns filed by the Company or any of and its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.all open taxable years;
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) no claim has ever been made (that has not been resolved) by a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority in any jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it the Company or any of its Subsidiaries is or may be subject to taxation by such jurisdiction;
(g) neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries or such an agreement or arrangement entered into in that jurisdiction.the ordinary course of business and not relating primarily to Taxes);
(h) neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (ii) has any liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of Law), as a transferee or successor or by contract or otherwise;
(i) the Company has made available to Parent copies of any material private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes requested or executed in the last six years;
(j) Neither neither the Company nor any of its Subsidiaries has participated in a any “listed reportable transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).4(b)(1) or any other transaction requiring disclosure under analogous provisions of Tax Law;
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action been, within the past two years, or agreed to take any action, nor to otherwise as part of a “plan (or series of related transactions)” within the knowledge meaning of Section 355(e) of the Code of which this Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify in whole or in part for tax-free treatment under Section 355 of the Code;
(l) neither the Company or nor any of its Subsidiaries are there will be required to include any facts item of income in, or circumstancesexclude material item of deduction from, that could reasonably be expected taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting under Section 481 of the Code (or any similar provision of state, local or foreign Law), or change in the basis for determining any item referred to prevent in Section 807(c) of the Transactions from qualifying Code, for a taxable period ending on or prior to the Intended Tax TreatmentClosing Date, (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) prepaid amount received on or prior to the Closing Date outside of the ordinary course of business, or (iv) any election under Section 108(i) of the Code; and
(m) no amount payable pursuant to this Agreement is subject to withholding under Section 1445 of the Code.
Appears in 3 contracts
Samples: Merger Agreement (Ocwen Financial Corp), Merger Agreement (Ocwen Financial Corp), Merger Agreement (PHH Corp)
Taxes. Except as set forth in Section 3.12 of the Parent Disclosure Schedule:
(a) All material Tax Returns required to be filed by or with respect to the Company on behalf of Parent, each of its Subsidiaries, and each affiliated, combined, consolidated or unitary group of which Parent or any of its Subsidiaries is a member have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all .
(b) All material Taxes due payable by or with respect to Parent and payable each of its Subsidiaries (whether or not shown on any Tax Return) have been paid.
timely paid when due, and adequate reserves (bother than a reserve for deferred Taxes established to reflect timing differences between book and Tax treatment) The Company in accordance with GAAP are provided on the respective company's Balance Sheet for any material Taxes not yet due. All assessments for material Taxes due and owing by or with respect to Parent and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property completed and settled examinations or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has concluded litigation have been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) paid. Neither the Company Parent nor any of its Subsidiaries has made incurred a request for Tax liability from the date of the latest Balance Sheet other than a Tax liability in the ordinary course of business.
(c) No action, suit, proceeding, investigation, claim or entered into a closing agreement, private letter ruling, advance tax ruling audit has formally commenced and no written notice has been given that such audit or similar agreement with any Governmental Authority other proceeding is pending or threatened with respect to Parent or any of its Subsidiaries or any group of corporations of which any of Parent and its Subsidiaries has been a member in respect of any Taxes. , and all deficiencies proposed as a result of such actions, suits, proceedings, investigations, claims or audits have been paid, reserved against or settled.
(d) Neither the Company Parent nor any of its Subsidiaries has made a change requested, or been granted any waiver of any method federal, state, local or foreign statute of accounting limitations with respect to, or any extension of a period for the assessment of, any Tax. No extension or waiver of time within which to file any Tax Return of, or applicable to, Parent or any of its Subsidiaries has been granted or requested which has not since expired.
(e) Other than with respect to its Subsidiaries, Parent is not and has never been (nor does Parent have any Taxes.
(gliability for unpaid Taxes because it once was) Neither the Company a member of an affiliated, consolidated, combined or unitary group, and neither Parent nor any of its Subsidiaries is a party to any Tax indemnification allocation or Tax sharing agreement or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for the Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor successor, by Contract, or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(if) Within the past three (3) yearsParent and its Subsidiaries have not made any payments, no written claim has been made by are not obligated to make any Governmental Authority where the Company or payments, and are not a party to any agreements that under any circumstances could obligate any of its Subsidiaries does them to make any payments as a result of the transactions contemplated by this Agreement, that will not file Tax Returns that it is or may be subject to taxation in that jurisdictiondeductible under Section 280G of the Code.
(jg) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company Parent has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” been a United States real property holding corporation within the meaning of Section 368(a)(2)(F897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(lh) Except as contemplated Parent and each of its Subsidiaries have complied with all applicable Laws relating to the payment and withholding of Taxes (including, without limitation, withholding of Taxes pursuant to Sections 1441, 1442 and 3406 of the Code or similar provisions under any foreign Laws) and have, within the time and in the manner required by this Agreement Law, withheld from employee wages and paid over to the Transactions contemplated hereby, neither the Company proper Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws.
(i) Neither Parent nor any of its Subsidiaries has taken made an election under Section 341(f) of the Code.
(j) None of Parent and its Subsidiaries will be required to include any action material amount in taxable income for any taxable period (or agreed to take any action, nor portion thereof) ending after the Closing Date as a result of a change in the method of accounting for a taxable period ending prior to the knowledge Closing Date, any "closing agreement" as described in Section 7121 of the Company Code (or any corresponding provision of its Subsidiaries are there state, local or foreign Tax Laws) entered into prior to the Closing Date, any facts sale reported on the installment method that occurred prior to the Closing Date, or circumstances, any taxable income attributable to any amount that could reasonably be expected is economically accrued prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 3 contracts
Samples: Merger Agreement (Webmethods Inc), Merger Agreement (Webmethods Inc), Merger Agreement (Webmethods Inc)
Taxes. (ai) All Each of the Company and its subsidiaries has timely filed all material Tax Returns required to be filed by it with any Governmental Authority on or with respect to before the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all due date and each such Tax Returns (taking into account all amendments thereto) are true, Return was complete and correct and complete in all material respects, . Each of the Company and its subsidiaries has paid or caused to be paid to the appropriate Governmental Authority on a timely basis all material Taxes which are due and payable, all assessments and reassessments and all other material Taxes as are due and payable (whether by it, other than those which are being or not shown on any Tax Return) have been paidcontested in good faith pursuant to applicable Laws, and in respect of which, in the reasonable opinion of the Company, adequate reserves or accruals in accordance with IFRS have been provided in the Nomad Financial Statements.
(bii) The Company and each of its Subsidiaries No audit, action, investigation, deficiencies, litigation, proposed adjustments have withheld from amounts owing to any employeebeen asserted or, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements knowledge of the Company, threatened with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or its subsidiaries, and neither the Company nor any of its Subsidiaries.
(d) No claim, assessment, deficiency subsidiaries is a party to any action or proposed adjustment proceeding for any assessment or collection of material amount of Tax Taxes and no such event has been asserted in writing or assessed by any Governmental Authority against or, to the Company or any knowledge of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination the Company, threatened. No Return of the Company or its subsidiaries is under investigation, review, audit or examination by any of its Subsidiaries presently in progress taxing authority with respect to any material Taxes, nor and no written notice of any investigation, review, audit or examination by any taxing authority has been received by the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect subsidiaries with respect to any material Taxes.
(iii) No Lien for Taxes has been filed or exists with respect to any assets or properties of the Company or any its subsidiaries other than for Taxes not yet due and payable or Liens for Taxes that are being contested in good faith by appropriate proceedings. There are no currently effective elections, agreements or waivers extending the statutory period or providing for an extension of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority time with respect to the assessment or reassessment of any Taxes, the filing of any Return or any payment of Taxes by the Company or its subsidiaries other than in connection with routing filing extensions. Neither the Company nor any of its Subsidiaries subsidiaries has made made, prepared and/or filed any elections, designations or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Taxes or Returns that could, in and of itself, require a change material amount to be included in the income of the Company or its subsidiaries for any method of accounting with respect to any Taxestaxable period ending after the Effective Date.
(giv) The Company and each of its subsidiaries has duly and timely withheld or collected all material amounts required to be withheld or collected by it on account of Taxes and has complied in all material respects with its obligations to duly and timely remit all such Taxes or other amounts to the appropriate Governmental Authority when required to Law to do so;
(v) There are no rulings or closing agreements relating to the Company or its subsidiaries which may affect the Company’s or its subsidiaries’ liability for Taxes for any taxable period commencing after the Effective Date.
(vi) For all transactions between the Company or any of its subsidiaries and any person who is not resident in Canada for purposes of the Tax Act with whom the Company or any of its subsidiaries was not dealing at arm’s length for purposes of the Tax Act, the Company or its subsidiaries has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act (or comparable provisions of any other applicable legislation).
(vii) No circumstances exist or may reasonably be expected to arise as a result of matters existing before the Effective Date that may result in the Company or its subsidiaries being subject to the application of Section 160 of the Tax Act (or comparable provisions of any other applicable legislation).
(viii) None of Sections 78 or 80 to 80.04 of the Tax Act (or comparable provisions of any other applicable legislation) have applied to the Company or its subsidiaries, and there are no circumstances existing which could reasonably be expected to result in the application of Sections 78 or 80 to 80.04 of the Tax Act (or comparable provisions of any other applicable legislation) to the Company or its subsidiaries.
(ix) There are no circumstances which exist and would result in, or which have existed and resulted in, Section 17 of the Tax Act requiring a material amount to be included in the income of the Company or to its subsidiaries. Neither the Company nor any of its Subsidiaries subsidiaries is obligated to make any material payments or is a party to any agreement under which it could be obligated to make any payment that will not be deductible in computing its income under the Tax indemnification or Act by virtue of Section 67 of the Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Act.
(hx) Neither the Company nor its subsidiaries has any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) liability under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law), or liability as a transferee or successor or transferee, by Contract (contract or otherwise, for Taxes of any Person other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or its subsidiaries, excluding any agreement or arrangement where the inclusion of its Subsidiariesa Tax indemnification or allocation provision is customary or incidental to an agreement the primary nature of which is not Tax sharing or indemnification.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jxi) Neither the Company nor any of its Subsidiaries subsidiaries has participated in a “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2).
(kxii) The Neither the Company nor any of its subsidiaries is or has not been, is not, and immediately prior been a party to the Share Exchange Closing will not be, treated any “reportable transaction” as an “investment company” within the meaning of defined in Section 368(a)(2)(F6707A(c)(1) of the CodeCode and U.S. Treasury Regulation Section 1.6011-4(b).
(lxiii) Except as contemplated by this Agreement and During the Transactions contemplated herebylast two years, neither the Company nor any of its Subsidiaries subsidiaries has taken been a party to any action or agreed to take any action, nor to the knowledge transaction (other than a transaction described in Section 355(e)(2)(C) of the Company Code) treated by the parties thereto as one to which Section 355 of the Code (or any similar provision of its Subsidiaries are there any facts state, local, or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentforeign Law) applied.
Appears in 2 contracts
Samples: Arrangement Agreement (Sandstorm Gold LTD), Arrangement Agreement (Nomad Royalty Co Ltd.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company Acquiror or any of its Subsidiaries Merger Sub have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid, other than Taxes being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(b) The Company Acquiror and each of its Subsidiaries Merger Sub have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesrequirements.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Acquiror or any of its SubsidiariesMerger Sub.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Acquiror or any of its Subsidiaries Merger Sub that remains unresolved or unpaidunpaid except for claims, assessments, deficiencies or proposed adjustments being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(e) There is are no material Tax audit audits or other examination examinations of the Company or any of its Subsidiaries Acquiror presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationprogress, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company Acquiror or any of its SubsidiariesMerger Sub.
(f) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub has made a request for or entered into a closing agreement, private letter an advance tax ruling, advance tax ruling request for technical advice, a request for a change of any method of accounting or any similar agreement request that is in progress or pending with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made Taxes that would reasonably be expected to be material to Acquiror and Merger Sub, taken as a change of any method of accounting with respect to any Taxeswhole.
(g) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries Acquiror and/or Merger Sub and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company Acquiror nor Merger Sub has been a party to any transaction treated by the parties as a distribution of its Subsidiaries stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Acquiror nor Merger Sub (i) is liable for Taxes of any other Person (other than the Company and its SubsidiariesAcquiror or Merger Sub) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries Acquiror does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) The Acquiror 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.
(l) The Acquiror has never had a permanent establishment in any country other than the country of its organization, nor is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(m) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kn) The Company has not beenNeither the Acquiror nor Merger Sub will be required to include any material amount in taxable income, is notexclude any material item of deduction or loss from taxable income, and immediately or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) installment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Share Exchange Closing, (ii) prepaid amount received or deferred revenue recognized prior to the Closing, (iii) change in method of accounting for a taxable period ending on or prior to the Closing will not beDate, treated (iv) “closing agreement” as an “investment company” within described in Section 7121 of the meaning Code (or any similar provision of state, local or foreign Law) executed prior to the Closing, or (v) by reason of Section 368(a)(2)(F965(a) of the CodeCode or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law), and to the knowledge of Acquiror, the IRS has not proposed any such adjustment or change in accounting method.
(lo) Except The Acquiror is and always has been properly classified as contemplated by this Agreement a domestic corporation taxable under subchapter C of the Code for U.S. federal income Tax purposes and has had comparable status under the Transactions contemplated hereby, neither Laws of any other jurisdiction in which it was required to file any Tax Return at the Company nor any of its Subsidiaries has time it was required to file such Tax Return.
(p) Acquiror and Xxxxxx Sub have not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries Acquiror are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code and the Treasury Regulations.
Appears in 2 contracts
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.), Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Taxes. (a) All material Other than as set forth in Section 3.10(a) of the SALIC Disclosure Schedule,
(i) all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries SALIC Group Companies have been timely filed and no extension of time within which to file any such Tax Return is in effect,
(taking into account any applicable extensions), ii) all such Tax Returns (taking into account all amendments thereto) are were true, complete, and correct and complete in all material respects, respects and disclose all material Taxes due required to be paid by or with respect to the SALIC Group Companies for the periods covered thereby and payable (iii) all Taxes (whether or not shown as due on any such Tax ReturnReturns) for which any of the SALIC Group Companies may be liable have been timely paid.
(b) The Company and each Other than as set forth in Section 3.10(b) of its Subsidiaries have withheld from amounts owing to any employeethe SALIC Disclosure Schedule,
(i) there are no audits, creditor claims, actions or other Person all material assessments regarding Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority pending or proposed or threatened in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements writing with respect to such TaxesTaxes for which any of the SALIC Group Companies may be liable, and (ii) all deficiencies asserted or assessments made as a result of any examination of the Tax Returns described in Section 3.10(a) have been paid in full or otherwise finally resolved.
(c) There are no Liens No waiver of any statute of limitations relating to Taxes for Taxes (other than Permitted Liens) upon the property or assets which any of the Company or any of its SubsidiariesSALIC Group Companies may be liable is in effect, and no written request for such a waiver is outstanding.
(d) No claimThere are no Tax rulings, assessmentrequests for rulings, deficiency or proposed adjustment closing agreements relating to Taxes for which any of the SALIC Group Companies may be liable that could affect the SALIC Group Companies’ liability for Taxes for any material amount taxable period ending after the Closing Date. None of Tax has been asserted the SALIC Group Companies will be required to include or accelerate the recognition of any item in writing income, or assessed by exclude or defer any Governmental Authority against deduction or other tax benefit, in each case in any taxable period (or portion thereof) after Closing, as a result of any change in method of accounting, closing agreement, intercompany transaction, installment sale, or the Company or receipt of any of its Subsidiaries that remains unresolved or unpaidprepaid amount, in each case prior to Closing.
(e) There is no material Tax audit or No Encumbrances (other examination of the Company or any of its Subsidiaries presently in progress than Permitted Encumbrances) for Taxes exist with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company assets or any properties of its Subsidiariesthe SALIC Group Companies.
(f) Neither the Company nor All Taxes that any of its Subsidiaries has made a request the SALIC Group Companies is required by law to withhold or to collect for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any payment have been duly withheld and collected and have been paid to the appropriate Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesAuthority.
(g) Neither the No SALIC Group Company nor any of its Subsidiaries is a party to or bound by any Tax indemnification or Tax sharing or similar Tax agreement allocation, sharing, indemnity (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in connection with a material transaction with a third party) or similar agreement. Except as set forth in Section 3.10(g) of the ordinary course of business) not primarily related to Taxes).
(h) Neither the SALIC Disclosure Schedule, no SALIC Group Company nor any of its Subsidiaries (i) is liable for Taxes has been a member of any Company Group other Person than each Company Group of which it is presently a member, and no SALIC Group Company presently has or has had any direct or indirect ownership interest in any corporation, partnership, joint venture or other entity (other than the Company and its SALIC Subsidiaries) ). None of the SALIC Group Companies has any liability for Taxes of another Person under Treasury Regulation Section § 1.1502-6 (or any similar provision of state, local or foreign Tax Law or law), as a transferee or successor successor, or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(ih) Within None of the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries SALIC Group Companies has participated in a any “listed transaction” within the meaning of Treasury Regulation § 1.6011-4(b)(2) and, with respect to each transaction in which any SALIC Group Company has participated that is a “reportable transaction” within the meaning of Treasury Regulation § 1.6011-4(b)(1), such participation has been properly disclosed on IRS Form 8886 (Reportable Transaction Disclosure Statement) and on any corresponding form required under state, local or other law.
(i) During the last three years, no SALIC Group Company has been a party to any transaction treated by the parties thereto as one to which Section 355 of the Code (or any similar provision of state, local or foreign law) applied.
(j) None of the SALIC Group Companies (other than SRLB) has made an election under Section 953(d) of the Code to be treated as a domestic corporation.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated Other than as an “investment company” within the meaning of set forth on Section 368(a)(2)(F3.10(k) of the Code.
SALIC Disclosure Schedule, (li) Except as contemplated by this Agreement and none of the Transactions contemplated herebySALIC Group Companies has unutilized net operating losses the use of which to offset U.S. federal income tax liability would be restricted or prohibited under Section 1503 of the Code or Treasury Regulations thereunder, neither the (ii) each Company nor Group of which any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of SALIC Group Companies is a member does not have and will not have on the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.Closing Date a consolidated Section 382 limitation (as determined under Treasury Regulation § 1.1502-93) and
Appears in 2 contracts
Taxes. (a) All Each of the Company and its Subsidiaries has duly and timely filed all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)it, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, .
(b) Each of the Company and its Subsidiaries has timely paid all material Taxes due and payable required to be paid by it (whether or not shown due on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes).
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets Except as would not have a Material Adverse Effect, each of the Company or any and its Subsidiaries has made adequate provision in the financial statements of the Company (in accordance with GAAP) for all Taxes of the Company and its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount Each of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of and its Subsidiaries that remains unresolved or unpaidhas complied, in all material respects, with all applicable Laws relating to the payment and withholding of Taxes and has, within the time and manner prescribed by Law, withheld and paid over to the proper tax authorities all amounts required to be withheld and paid over by it.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for received written notice of any pending or entered into a closing agreementthreatened audit, private letter rulingproceeding, advance tax ruling examination or litigation or similar agreement with any Governmental Authority claim that has been commenced or is presently pending with respect to Taxes. Neither any material Taxes or material Tax Return of the Company nor or any of its Subsidiaries for which the Company has not made adequate provisions (in accordance with GAAP) in its financial statements.
(f) No written claim has been made by any tax authority in a change jurisdiction where any of the Company or its Subsidiaries does not file a Tax Return that the Company or any method of accounting with respect its Subsidiaries is or may be subject to any Taxestaxation in that jurisdiction.
(g) Neither No material deficiency with respect to any Taxes has been proposed, asserted or assessed against the Company nor or any of its Subsidiaries, and no requests for waivers of the time to assess any material amount of Taxes are pending.
(h) There are no outstanding written agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney granted by either the Company or any of its Subsidiaries is a party with respect to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into material Taxes is currently in the ordinary course of business) not primarily related to Taxes)force.
(hi) Neither the Company nor any of its Subsidiaries (iA) is liable a party to any agreement providing for the allocation, sharing or indemnification of any material amount of Taxes imposed on or with respect to any individual or other person, (B) has been a member of an affiliated group (or similar state, local or foreign filing group) filing a consolidated U.S. federal income Tax Return (other than the group the common parent of which is the Company) or (C) has any liability for the Taxes of any other Person person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law law), or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionsuccessor.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(k) There are no material Liens for Taxes upon the assets or properties of the Company or any of its Subsidiaries, other than Permitted Liens.
(l) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date, or (B) “closing agreement,” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Law), entered into on or prior to the Closing Date, or (C) any ruling received from the Internal Revenue Service.
(m) The Company has not beenpreviously delivered or made available to Parent or Merger Sub complete and accurate copies of each of (i) all audit reports, is notletter rulings, technical advice memoranda, and immediately prior similar documents issued by any tax authority relating to the Share Exchange Closing will not beUnited States Federal, treated state, local or foreign Taxes due from or with respect to the Company and its Subsidiaries and (ii) any closing agreements entered into by any of the Company and its Subsidiaries with any tax authority, in each case existing on the date hereof.
(n) Neither the Company nor any of its Subsidiaries is or has been a United States real property holding corporation (as an “investment company” within defined in Section 897(c)(2) of the meaning of Code) during the applicable period specified in Section 368(a)(2)(F897(c)(1)(A)(ii) of the Code.
(lo) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action constituted a “distributing corporation” or agreed to take any action, nor to a “controlled corporation” (within the knowledge meaning of Section 355(a)(1)(A) of the Company Code) in a distribution of stock to which Section 355 of the Code (or any so much of its Subsidiaries are there any facts or circumstances, that could reasonably be expected Section 356 of the Code as relates to prevent Section 355 of the Transactions from qualifying for Code) applies and which occurred within two years of the Intended Tax Treatmentdate of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Taxes. (a) All material Tax Returns required to be filed by the Company or any of its Subsidiaries have been duly and timely filed (taking into account extensions of time for filing) and all such filed Tax Returns are complete and accurate in all material respects. All material Taxes that are due and payable by the Company or any of its Subsidiaries have been timely paid in full. All material withholding Tax requirements imposed on or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete satisfied in all material respectsfull, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding information reporting (and related reporting requirements with respect to such Taxeswithholding) and record retention requirements.
(cb) There are no Liens is not in force any waiver or agreement for Taxes (other than Permitted Liens) upon any extension of time for the property assessment or assets payment of any material Tax by the Company or any of its Subsidiaries.
(dc) No There is no outstanding material claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved has been asserted in writing by any Governmental Entity. There are no Proceedings pending or, to the knowledge of the Company, threatened regarding any material Taxes of the Company and its Subsidiaries or unpaidthe assets of the Company and its Subsidiaries.
(ed) There is no material Tax audit or other examination of Neither the Company or nor any of its Subsidiaries presently in progress with respect is a party to any material TaxesTax allocation, nor has sharing or indemnity contract or arrangement (not including, for the Company avoidance of doubt (i) an agreement or any arrangement solely among the members of its Subsidiaries been notified in writing a group the common parent of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of which is the Company or any of its Subsidiaries, or (ii) any customary provisions contained in any commercial agreement entered into in the ordinary course of business and not primarily relating to Tax (e.g., leases, credit agreements or other commercial agreements)). Neither the Company nor any of its Subsidiaries has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, or by reason of assumption, operation of Law, or otherwise.
(e) Neither the Company nor any of its Subsidiaries has participated, or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(f) Neither the Company nor any of its Subsidiaries has made constituted a request “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or entered into so much of Section 356 of the Code as relates to Section 355 of the Code) (i) in the two years prior to the date of this Agreement or (ii) as part of a closing agreement, private letter ruling, advance tax ruling “plan” or similar agreement “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTransactions.
(g) Neither No written claim has been made by any Taxing Authority in a jurisdiction where the Company nor or any of its Subsidiaries does not currently file a Tax Return that it is a party or may be subject to any material Tax indemnification or Tax sharing or similar Tax agreement (other than in such jurisdiction, nor has any such agreement solely between the Company assertion been threatened or proposed in writing and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or received by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(h) The Company has made available to Parent complete and correct copies of any private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes which has been requested or will remain in effect as of the Closing.
(i) Within There are no Encumbrances for material Taxes on any of the past three (3) years, no written claim has been made by any Governmental Authority where assets of the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionSubsidiaries, except for Permitted Encumbrances.
(j) Neither the Company nor any of its Subsidiaries has participated will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a “listed transaction” within result of any closing agreement, installment sale or open transaction on or prior to the meaning Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any intercompany transaction or excess loss account described in Section 1502 of Treasury Regulation 1.6011-4(b)(2the Code (or any corresponding provision of Law with respect to Taxes), or any election pursuant to Section 108(i) of the Code (or any similar provision of Law) made with respect to any taxable period ending on or prior to the Closing Date.
(k) The Neither the Company has not been, nor any of its Subsidiaries is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companyU.S. shareholder” (within the meaning of Section 368(a)(2)(F951(b) of the Code) of any foreign corporation which may be required to include in income any amounts under Section 951(a) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyAfter reasonable diligence, neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions Integrated Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(m) The Company is, and has been since formation, properly classified for United States federal income tax purposes as a corporation. No Subsidiary of the Intended Tax TreatmentCompany is a foreign corporation.
Appears in 2 contracts
Samples: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)
Taxes. (a) All Each of the Company and its Subsidiaries has duly and timely filed all material Tax Returns required to be filed by or it with the appropriate Governmental Authority (taking into account any valid extensions with respect thereto) and all such Tax Returns are true, complete and correct in all material respects.
(b) Each of the Company and its Subsidiaries has: (i) duly and timely paid all material Taxes due and payable by it other than such Taxes that are being contested in good faith through appropriate proceedings and in respect of which adequate reserves have been established in accordance with GAAP in the financial statements contained in the Filed SEC Documents; (ii) duly and timely withheld all material Taxes and other amounts required by applicable Laws to be withheld by it and has duly and timely remitted to the appropriate Governmental Authority all such withheld Taxes and other amounts required by applicable Laws to be remitted by it; and (iii) duly and timely collected all amounts on account of sales or transfer Taxes, including goods and services, harmonized sales, value added and federal, provincial, state or territorial sales Taxes, required by applicable Laws to be collected by it and has duly and timely remitted to the appropriate Governmental Authority all such collected Taxes required by applicable Laws to be remitted by it.
(c) No deficiencies for any material Taxes have been proposed, asserted, assessed or to the Knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries which have not been timely filed (taking into account any applicable extensions)settled and paid. No audit, all such Tax Returns (taking into account all amendments thereto) are trueaction, correct and complete in all material respectsinvestigation, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeexamination, creditor suit or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority proceeding is pending or is being threatened in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements writing with respect to such Taxes.
(c) There are no Liens for any material Taxes (other than Permitted Liens) upon the property or assets Tax Returns of the Company or any of its Subsidiaries.
(d) No claimThe charges, assessmentaccruals, deficiency and reserves for Taxes reflected on the financial statements contained in the Filed SEC Documents (whether or proposed adjustment not due and whether or not shown on any Tax Return but excluding any provision for any material amount deferred income Taxes) are adequate under GAAP to cover Taxes of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any and each of its Subsidiaries that remains unresolved or unpaidaccruing through the date of such financial statements contained in the Filed SEC Documents.
(e) There is are no material Tax audit Liens for Taxes on the property or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes assets of the Company or any of its Subsidiaries, except for statutory Liens for Taxes not yet due and payable.
(f) Neither the Company nor any of its Subsidiaries is, or to the Knowledge of the Company has made been, a request party to any Tax Sharing Agreement (other than an agreement exclusively between or among the Company and its Subsidiaries) pursuant to which it will have any obligation to make any payments for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to TaxesTaxes after the Effective Time. Neither the Company nor any of its Subsidiaries has made been a change member of any method an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of accounting with respect to any Taxeswhich was the Company).
(g) Neither No private letter rulings, technical advice memoranda, closing agreement, or similar agreements or rulings have been entered into or issued by any Governmental Authority with respect to the Company nor or any of its Subsidiaries that are binding on such entity in respect of any taxable year for which the statute of limitations has not yet expired. There is a party no currently effective agreement or other document with respect to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and or any of its existing Subsidiaries and customary commercial Contracts (extending the period of assessment or Contracts entered into in the ordinary course collection of business) not primarily related to any material Taxes).
(h) Neither None of the Company nor or any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution that was purported or intended to be governed by Section 355 of the Code (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in Law) occurring during the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group two-year period ending on the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) date hereof. Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) 6011 of the Code.
(l) Except as contemplated by this Agreement Code and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentTreasury regulations promulgated thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Restaurant Brands International Inc.), Merger Agreement (Popeyes Louisiana Kitchen, Inc.)
Taxes. It is agreed and understood that no representation or warranty is made by Sellers in this Agreement in respect of Tax matters, other than the representations and warranties set forth in Section 3.10 (insofar as they specifically relate to Taxes) and this Section 3.12.
(a) All material Tax Returns and all Pass-through Tax Forms required to be filed by or with respect to the Company or any of its Subsidiaries Transferred Entity have been timely filed (taking into account any applicable all properly granted extensions)) and all Taxes shown as due thereon have been timely paid to the appropriate Governmental Entity, all such Tax Returns (taking into account and all amendments thereto) are Pass-through Tax Forms were true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown to be due on any such Tax ReturnReturns) have been paidtimely paid to the appropriate Governmental Entity or will be timely paid by the due date thereof.
(b) The Company and each of its Subsidiaries have withheld from amounts owing There is no action, suit, proceeding, investigation, audit, deficiency, adjustment or claim pending or threatened either (i) in writing with respect to any employee, creditor Taxes of the Transferred Entities or other Person all material Taxes required by applicable Law to be withheld, paid over (ii) to the proper Governmental Authority in a timely manner all such withheld amounts required Sellers’ Knowledge with respect to have been so paid over and any Taxes of the Transferred Entities.
(c) Each of the Transferred Entities has complied in all material respects with all applicable Laws relating to information reporting and the payment and withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for of Taxes (including maintenance of any required records) and has duly withheld or collected and paid over to the appropriate Taxing Authorities all material amounts required to be so withheld or collected and paid over in connection with amounts paid or owing to any current or former employee, independent contractor, or other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiariesthird party.
(d) No claim, assessment, deficiency or proposed adjustment for None of the Transferred Entities has participated in any material amount “listed transaction” within the meaning of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidTreasury Regulations Section 1.6011-4.
(e) There is are no material agreements or waivers currently in effect that provide for an extension of time for the assessment of any Tax audit or other examination of the Company or against any of its Subsidiaries presently in progress Transferred Entity with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any open Tax indemnification or Tax sharing or similar Tax agreement period (other than pursuant to any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into extensions of time to file Tax Returns obtained in the ordinary course of business) not primarily related ). No request which is still outstanding has been made in writing for any such waiver, extension, consent or agreement (other than pursuant to Taxesany extensions of time to file Tax Returns obtained in the ordinary course of business). No private letter ruling of the IRS or any comparable ruling relating to Taxes of any Governmental Entity has been received or applied for with respect to the Transferred Entities.
(hf) Neither In the Company nor past five (5) years, no written claim has been made by a Taxing Authority in a jurisdiction where a Tax Return is not filed by or on behalf of a Transferred Entity that such Transferred Entity is subject to Tax in that jurisdiction. Each Transferred Entity has only ever been resident in its country of incorporation for Tax purposes and is not, and has never been, resident in any other country by operation of any double tax agreement, and no Transferred Entity has, or has ever had, a branch or permanent establishment outside its country of incorporation which may result in any of its Subsidiaries the Transferred Entities being subject to Tax in that other country.
(ig) No Transferred Entity has been a member of an affiliated, consolidated, combined, unitary or similar group that has elected, or is required, to file Tax Returns or pay Taxes on a joint or group basis and no Transferred Entity is liable for Taxes of any other Person person (other than a Transferred Entity) as a result of successor or transferee liability or otherwise by operation of Law. No Transferred Entity is a party to, bound by, or has any obligation under, any Tax sharing, indemnity, allocation or similar agreement or arrangement, a primary subject of which is Taxes (excluding (A) any such agreement between or among the Company Transferred Entities, and its Subsidiaries(B) any obligation or arrangement arising pursuant to this Agreement).
(h) No Transferred Entity has agreed to make, nor is required to make, any material adjustment under Treasury Regulation Section 1.1502-6 481(c) of the Code (or any similar provision of state, local or foreign Tax Law law) by reason of a change in accounting method or as a transferee otherwise, and the IRS has not proposed any such adjustment or successor or by Contract (other than customary commercial Contracts (or Contracts entered into change in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesaccounting method.
(i) Within Until the past three (3) yearseffectiveness of the election described in Section 7.6, no written claim the Company was classified as a partnership for U.S. federal income Tax purposes and, since the effectiveness of such election, the Company has been made by any Governmental Authority where classified as a disregarded entity for U.S. federal income Tax purposes. The Tax classification for U.S. federal income Tax purposes of each other Transferred Entity is set forth on Section 3.12(i) of the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionSeller Disclosure Schedule.
(j) Neither There are no Liens for Taxes upon any assets of the Company nor Transferred Entities except for Permitted Liens.
(k) No Transferred Entity has been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period specified in Code Section 897(c)(1)(A)(ii).
(l) No Transferred Entity 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) beginning after the Closing Date as a result of any of its Subsidiaries has participated in the following that occurred or existed with respect to any Transferred Entity prior to Closing: (i) a “listed closing agreement”, advance compliance agreement, advance pricing agreement or similar agreement entered into with a Taxing Authority in any jurisdiction, (ii) an installment sale or open transaction” , (iii) a prepaid amount or deferred revenue, (iv) a change in the accounting method of a Transferred Entity for a taxable period ending on or prior to the Closing, (v) the use of an improper method of accounting for a taxable period ending on or prior to the Closing Date, or (vi) any intercompany transaction within the meaning of Treasury Regulation 1.6011Section 1.1502-4(b)(2)13.
(km) No power of attorney with respect to Taxes of a Transferred Entity has been executed by any Transferred Entity with any Taxing Authority in any jurisdiction that is currently in effect.
(n) Any and all transactions between or among the Company and its Subsidiaries and/or any of their Affiliates have occurred on arm’s-length terms in all material respects and the Company and its Subsidiaries have complied, in all material respects, with all Tax-related requirements that the arm’s-length nature of the terms of such transactions be documented. Such transactions have been, in all material respects, properly taken into account and reported in the Tax Returns of the Company and its Subsidiaries, and the Company and its Subsidiaries have, in all material respects, maintained any documentation (including any applicable transfer pricing studies) in connection with any such related party transactions required in accordance with applicable Law.
(o) The Company has not beenmade an election to have Sections 6221 through 6241 of the Code, is notas amended by the Bipartisan Budget Act of 2015, together with any guidance issued thereunder or successor provisions and immediately any similar provision of state or local Tax laws, apply to any taxable year beginning before January 1, 2018.
(p) No Transferred Entity has constituted either a “distributing corporation” or a “controlled corporation” in a distribution purporting or intending to qualify for tax-free treatment under Section 355 of the Code in the two years prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning date of Section 368(a)(2)(F) of the Codethis Agreement.
(lq) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor No Transferred Entity has any of its Subsidiaries has taken material obligation with respect to any action unclaimed property or agreed to take any action, nor to the knowledge escheat Laws.
(r) The unpaid Taxes of the Company or any Transferred Entities as of its Subsidiaries are there any facts or circumstances, that could reasonably be expected the Balance Sheet Date did not materially exceed the reserve for Liability for Taxes (rather than for deferred Taxes established to prevent reflect timing differences between book and Tax income) set forth on the Transactions from qualifying for face of the Intended Tax TreatmentFinancial Statements as of the Balance Sheet Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Taxes. (a) (i) All material Tax Returns required to be filed (taking into account extensions of time for filing) by the Company or any of its Subsidiaries have been timely filed; (ii) all material Taxes that are due and payable by the Company or any of its Subsidiaries have been timely paid in full; and (iii) all material withholding Tax requirements imposed on or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete satisfied in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidfull.
(b) The There is not in force any waiver or agreement for any extension of time for the assessment or payment of any material Tax by the Company or any of its Subsidiaries, and there is no pending audit, examination or other proceeding (and the Company and each of its Subsidiaries have withheld from amounts owing to not received notice in writing of any employeeproposed or threatened audit, creditor examination or other Person all proceeding) relating to the assessment or collection of any material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of due from the Company or any of its Subsidiaries.
(c) No material power of attorney that is currently in force has been granted with respect to Taxes that could affect the Company or any of its Subsidiaries after the Closing.
(d) No There is no outstanding material claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved has been asserted or unpaid.
(e) There is threatened in writing by any Governmental Entity, and no material Tax audit or other examination of written claim has been made, within the preceding three years, by a Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries presently does not file Tax Returns or pay Taxes that it is obligated to file Tax Returns or pay Taxes in progress with respect to any material Taxes, nor has such jurisdiction.
(e) Neither the Company or nor any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect (i) is a party to any material agreement or arrangement relating to the apportionment, sharing, assignment or allocation of Taxes (not including, for the avoidance of doubt (y) an agreement or arrangement solely among the members of a group the common parent of which is the Company or any of its Subsidiaries, or (z) any Tax sharing or indemnification provisions contained in any agreement entered into in the ordinary course of business and not primarily relating to Tax (e.g., leases, credit agreements or other commercial agreements)), (ii) will be required to include any material item of income in, or exclude any material item of deduction from, taxable income following the Closing Date as a result of the application of an accounting method (e.g., the installment sale or completed contract method of accounting) or a change in accounting method, or (ii) has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made participated, or is currently participating, in a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes“listed transaction” as defined in Treasury Regulations Section 1.6011-4(b).
(g) Neither the Company nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (or a successor thereto) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code that is a party reasonably likely to any result in the imposition of Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between on the Company and or any of its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in under Section 355(e) of the ordinary course Code as a result of business) not primarily related to Taxes)the Transactions.
(h) Neither After reasonable diligence, neither the Company nor any of its Subsidiaries (i) is liable for Taxes aware of the existence of any other Person (other than fact, or has taken or agreed to take any action, that would prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or Merger from qualifying as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in “reorganization” within the ordinary course meaning of businessSection 368(a) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Code. Neither the Company nor any of its Subsidiaries has participated in knowledge of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Range Resources Corp), Merger Agreement (Memorial Resource Development Corp.)
Taxes. (a) (i) All income and other material Tax Returns that are required to be filed by or with respect to the Company or any of and its Subsidiaries have been timely filed (taking into account any applicable extensionsextensions of time for filing), all ; (ii) each such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, ; and (iii) all material Taxes owed by the Company or for which the Company is liable that are or have become due and payable (whether or not shown on any Tax Return) have been paidpaid in full.
(b) The All Tax withholding and deposit requirements imposed on or with respect to the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied satisfied in all material respects respects, and the Company and its Subsidiaries have complied with all applicable withholding information reporting (and related reporting withholding) and record retention requirements with respect to such Taxesin all material respects.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreementwritten agreement waiving or extending any statute of limitations in respect of any material Taxes.
(d) No Taxing Authority has asserted, private letter rulingproposed or, advance tax ruling to the Company’s knowledge, threatened any assessment, deficiency or similar agreement with any Governmental Authority adjustment with respect to Taxes. Neither any material Taxes or material Tax Returns of the Company or its Subsidiaries.
(e) No written claim or nexus inquiry has been made by a Taxing Authority in a jurisdiction where neither the Company nor any of its Subsidiaries has made a change file Tax Returns that the Company or one of any method its Subsidiaries is or may be subject to taxation by such jurisdiction.
(f) No claim, audit, action, suit, proceeding, examination or investigation is being conducted, pending or, to the knowledge of accounting the Company, threatened with respect to the Company or its Subsidiaries in respect of any Taxesmaterial Tax.
(g) Neither the Company nor any of its Subsidiaries is has been a party to any member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or non-U.S. income Tax indemnification or Tax sharing or similar Tax agreement Return (other than any such agreement solely between a group of which the Company is the common parent), and neither the Company nor any of its existing Subsidiaries and customary commercial Contracts has any liability for the Taxes of any Person other than the Company or any of its Subsidiaries under Treasury Regulations Section 1.1502-6 (or Contracts entered into in the ordinary course any similar provision of businessstate, local, or non-U.S. income Tax law) not primarily related to Taxes)or as a transferee or successor.
(h) Neither the Company nor any of its Subsidiaries has participated or engaged in any transaction that constitutes a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(i) Neither the Company nor any of its Subsidiaries was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a transaction intended to be governed in whole or in part by Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) as part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(j) There are no Liens for material Taxes on any of the assets of the Company or its Subsidiaries other than Permitted Liens.
(k) Neither the Company nor any of its Subsidiaries is liable for Taxes of a party to or bound by any other Person Tax allocation, sharing or indemnity agreements or arrangements (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 any commercial agreements or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts contracts entered into in the ordinary course of business) business and that are not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries).
(il) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file Tax Returns that it is or may be subject a party to taxation in that jurisdictiona tax receivable agreement.
(jm) Neither the Company nor any of its Subsidiaries has participated taken advantage of any Applicable Law enacted in a “listed transaction” within connection with COVID-19 that has the meaning result of Treasury Regulation 1.6011-4(b)(2).
temporarily reducing (kor temporarily delaying the due date of) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge payment obligation of the Company or any of its Subsidiaries are there to any facts Taxing Authority (including any payroll Taxes deferred pursuant to the CARES Act or circumstancesany similar provision of Applicable Law).
(n) The Company is and has been since formation, that could reasonably be expected properly classified as a corporation for U.S. federal income tax purposes.
(o) Section 3.21(o) of the Company Disclosure Schedule sets forth the U.S. federal income tax classification of each Subsidiary of the Company and the jurisdiction in which each Subsidiary of the Company is formed. Notwithstanding any other provisions of this Agreement, the representations and warranties in Section 3.18 (to prevent the Transactions from qualifying for extent relating to Tax matters), Section 3.19 (to the Intended extent relating to Tax Treatmentmatters), this Section 3.21 and Section 3.22 constitute the sole and exclusive representations and warranties made by the Company with respect to Tax matters.
Appears in 2 contracts
Samples: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Taxes. Except as set forth in Schedule 4.6 of the Disclosure Schedules:
(a) All material Tax Returns required to be filed by or with respect to the Company or any of its the Company Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (after taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidapplicable extensions).
(b) The Company All such Tax Returns are complete and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied correct in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesrespects.
(c) Each of the Company and the Company Subsidiaries has paid or caused to be paid in full all Taxes shown as due on such Tax Returns and all Taxes owed by the Company and the Company Subsidiaries for which no return was required to be filed , or has made adequate provision for all Taxes in the Financial Statements.
(d) No deficiency, adjustment or special adjustment for any Taxes has been or is expected to be asserted in writing, proposed in writing or assessed in writing against the Company or any of the Company Subsidiaries or any of their assets or properties, and the Company or any of the Company Subsidiaries knows of no grounds for any such deficiency, adjustment or special adjustment for any Taxes.
(e) There are no Liens examinations, audits currently in progress, pending or, to the Knowledge of the Company, threatened against the Company or any of the Company Subsidiaries.
(f) There are no outstanding agreements, waivers or arrangements extending the statutory period of limitation applicable to any claim for, or the period for the collection or assessment of, Taxes due from or with respect to the Company or any of the Company Subsidiaries for any taxable period.
(other than Permitted Liensg) upon No power of attorney granted by or with respect to the property Company or assets any of the Company Subsidiaries relating to Taxes is currently in force.
(h) The Company has delivered or made available to Purchaser for inspection (i) complete and correct copies of all income Tax Returns for the calendar years 2008, 2009, and 2010, and (ii) complete and correct copies of rulings, closing agreements, settlement agreements, deficiency notices and any similar documents submitted by, received by or agreed to by or on behalf of the Company or any of its Subsidiariesthe Company Subsidiaries and relating to material Taxes for such taxable periods.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fi) Neither the Company nor any of its the Company Subsidiaries has any liability for the Taxes of any Person (other than the Company or any of the Company Subsidiaries) under any applicable Law, as a transferee or successor, by Contract, or otherwise.
(j) There are no Encumbrances for Taxes upon any of the assets or properties of the Company or any of the Company Subsidiaries, other than for Taxes not yet due and payable.
(k) No claim has ever been made by a request Governmental Entity in a jurisdiction where the Company or any of the Company Subsidiaries does not file Tax Returns that the Company or any of the Company Subsidiaries is or may be subject to taxation by that jurisdiction, and to the Knowledge of the Company, there is no basis for any such claim to be made.
(l) The Company and the Company Subsidiaries have duly deducted, withheld, and timely paid to the appropriate Governmental Entities all Taxes required to be deducted, withheld, or entered into a closing agreement, private letter ruling, advance tax ruling paid in connection with amounts paid or similar agreement owing to any Person.
(m) The Company and the Company Subsidiaries have complied with any Governmental Authority all reporting and record keeping requirements with respect to Taxes. Neither the Company nor any , and have retained copies of its Subsidiaries has made a change of any method of accounting with respect all Tax Returns and all material documents relating to any Taxes, including, without limitation, Tax payment certificates, Tax deduction approvals and Tax filing supporting documents.
(gn) Neither the Company nor any of its the Company Subsidiaries is a party to to, or bound by, or has any obligation under, any Tax indemnification allocation or Tax sharing agreement or similar Tax Contract or arrangement or any agreement (other than that obligates it to make any such agreement solely between payment computed by reference to the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(ho) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or All related party transactions conducted by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesthe Company Subsidiaries have been conducted and are conducted at arm’s length, and have been properly documented and reported pursuant to applicable Law, including the transfer pricing Law of the relevant jurisdictions.
(ip) Within the past three No financial subsidies or Tax incentives (3) yearsincluding, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated without limitation, a reduction in a “listed transaction” within Tax rate, exemption from Tax or Tax refund) will be required to be repaid or clawed back after the meaning Closing, as a result of Treasury Regulation 1.6011-4(b)(2).
any action taken or event occurring on or before the Closing Date (k) The Company has not beenincluding, is notwithout limitation, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by entering into this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentTransaction).
Appears in 2 contracts
Samples: Share Purchase Agreement (Jinglong Group Co., Ltd.), Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Taxes. (a) (i) All material Tax Returns required to be filed by or with respect to the Company or any of Parent, its Subsidiaries and each Parent Consolidated Group have been timely and correctly filed (taking into account any in accordance with all applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, (ii) Parent, its Subsidiaries and each Parent Consolidated Group have timely paid all material Taxes due or claimed to be due and payable (will have paid all material Taxes of Parent, its Subsidiaries and each Parent Consolidated Group that are due on or before the Closing Date, including any installments or estimated payments due, whether or not shown on any Tax ReturnReturns, (iii) all material Employment and Withholding Taxes and any other material amounts required to be withheld with respect to Taxes have been paideither duly and timely paid to the proper Governmental Entities or properly set aside in accounts for such purpose in accordance with applicable Laws, (iv) the charges, accruals and reserves for Taxes with respect to Parent, its Subsidiaries and each Parent Consolidated Group reflected in the balance sheet, dated as of December 31, 2011, included in Parent’s Annual Report on Form 10-K for the year ended December 31, 2011 (the “Parent Balance Sheet”) are adequate under GAAP, (v) no material deficiencies or other claims for any Taxes asserted or assessed, or, to the Knowledge of Parent, proposed, against Parent or any of its Subsidiaries has not been resolved in all material respects, (vi) there is no material Litigation pending or, to the Knowledge of any of Parent or its Subsidiaries, threatened or scheduled to commence, against or with respect to Parent or any of its Subsidiaries in respect of any Tax or Return, and (vii) since December 31, 2005, neither Parent nor any of its Subsidiaries has received (A) notice from any federal taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns or (B) notice from any state taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns, other than notices with respect to examinations or audits by any state taxing authority that have not had and would not reasonably be expected to have a Material Adverse Effect on Parent.
(b) The Company statutes of limitations for the federal income Tax Returns of Parent, its Subsidiaries and each of its Subsidiaries Parent Consolidated Group have withheld from amounts owing to any employee, creditor expired or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to otherwise have been so paid over and complied in closed for all material respects with all applicable withholding and related reporting requirements with respect to such Taxestaxable periods ending on or before December 31, 2005.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company Parent nor any of its Subsidiaries has made been a request member of any “affiliated group” (as defined in Section 1504(a) of the Code) or has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only Parent and any Subsidiaries of Parent) provided for under the Laws of the United States, any foreign jurisdiction or entered into a closing agreement, private letter ruling, advance tax ruling any state or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company locality and none of Parent nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither liability for the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision under any state, local or foreign law), or as a successor or transferee.
(d) There are no Tax sharing, allocation, indemnification or similar agreements or arrangements, whether written or unwritten, in effect under which Parent or any of its Subsidiaries could be liable for any material Taxes of any Person other than Parent or any Subsidiary of Parent.
(e) Since December 31, 2005 neither Parent nor any of its Subsidiaries has entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes, nor is any request for such a waiver or extension pending.
(f) There are no Liens for Taxes on any asset of Parent or its Subsidiaries, except for Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries is the subject of or bound by any material private letter ruling, technical advice memorandum, closing agreement or similar material ruling, memorandum or agreement with any taxing authority.
(h) Neither Parent nor its Subsidiaries has entered into, has any liability in respect of, or has any filing obligations with respect to, any “reportable transactions,” as defined in Section 1.6011-4(b)(1) of the Treasury Regulations.
(i) Neither Parent 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 (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or Law), (ii) has ever been a member “closing agreement” as described in Section 7121 of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Code (or any corresponding or similar provision of its Subsidiaries.
(istate, local or foreign Tax Law) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company executed on or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not beDate, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.or
Appears in 2 contracts
Samples: Merger Agreement (Georesources Inc), Merger Agreement (Halcon Resources Corp)
Taxes. (a) All Each of the Company and each of its Subsidiaries has (i) duly and timely filed (taking into account extensions) with the appropriate Taxing Authorities all material Tax Returns required to be filed by it in respect of any Taxes, which Tax Returns were true, correct and complete in all material respects, (ii) duly and timely paid all Taxes shown as due and payable by it on such Tax Returns, (iii) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each of its Subsidiaries through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books and (iv) complied in all material respects with all Laws applicable to the information reporting, payment and withholding of Taxes and has timely withheld and paid over to the respective proper Taxing Authorities all material Taxes required to be so withheld and paid over.
(b) There is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or threatened against or with respect to the Company or any of its Subsidiaries in respect of any Taxes or Tax Returns, in each case, the resolution of which would reasonably be expected to result in a material liability or obligation to the Company or any Subsidiary of the Company and no requests for waivers of time to assess any such Taxes have been timely filed (taking into account granted and are still in effect, or are pending. Neither the Company nor any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing is liable for Taxes of any Person (other than the Company and its Subsidiaries) as a result of being (i) a transferee or successor of such Person, (ii) a member of an affiliated, consolidated, combined or unitary group that includes such Person as a member or (iii) a party to any employeea tax sharing, creditor tax indemnity, tax allocation or similar agreement, whether express or implied, other Person all material Taxes required by applicable Law to be withheld, paid over than contracts or agreements entered into in the ordinary course of business or pursuant to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesterms of commercial financing arrangements.
(c) There are no material Liens on any of the assets or properties of the Company or any of its Subsidiaries that arose in connection with any Tax (other than Liens for Taxes (i) not yet due and payable or (ii) being contested in good faith and for which adequate reserves have been established in accordance with GAAP on the Company Financial Statements).
(d) There are no Tax rulings, requests for rulings, closing agreements or other than Permitted Lienssimilar agreements or rulings with respect to material Taxes (including any gain recognition agreements under Section 367 of the Code or any application for a change in accounting method under Section 481 of the Code) upon the property in effect or assets of filed with any Taxing Authority relating to the Company or any of its Subsidiaries.
(de) No claimSince January 1, assessment2008, deficiency or proposed adjustment for any no material amount of Tax claim has been asserted made by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently such Subsidiary is or may be subject to Tax in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesjurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries transaction that is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into "listed transaction" as defined in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502§1.6011-6 4(b)(2). The transactions contemplated by this Agreement will not trigger any income or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related gain to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of for federal income tax purposes under Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated Code in respect of a distribution by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected occurring prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing.
Appears in 2 contracts
Samples: Merger Agreement (Mod Pac Corp), Merger Agreement (Mod Pac Corp)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed (taking into account all applicable extensions) all federal income and all other material U.S. federal, state, local and non-U.S. Tax Returns required to be filed by relating to any and all Taxes concerning or with respect attributable to the Company or Company, any of its Subsidiaries have been timely filed (taking into account any applicable extensions)or their respective operations, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects are true and correct and have been completed in accordance with Applicable Law.
(b) Each of the Company and its Subsidiaries has (i) timely paid all material Taxes due and payable it is required to pay (whether or not shown on any a Tax Return), and (ii) have been paid.
timely paid or withheld (band timely paid over any withheld amounts to the appropriate Taxing authority) The Company all federal and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material state, local and non-U.S. income Taxes, Federal Insurance Contribution Act and Federal Unemployment Tax Act amounts, and other Taxes (including all Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such reported and withheld amounts on any U.S or non-U.S. Company Equity Awards) required to have been so be paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesor withheld.
(c) There are no Liens Neither the Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than Permitted Liens) upon as of the property or assets date of the Company Balance Sheet that had not been accrued or reserved on the Company Balance Sheet in accordance with GAAP, and neither the Company nor any of its SubsidiariesSubsidiaries has incurred any material liability for Taxes since the date of the Company Balance Sheet other than in the Ordinary Course.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against Neither the Company or nor any of its Subsidiaries that remains unresolved has executed any outstanding waiver of any statute of limitations on or unpaidextension of the period for the assessment or collection of any Tax.
(e) There is To the Knowledge of the Company, no material Tax audit or other examination with respect to any Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination. As of the date hereof, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect material adjustment relating to any Tax Return filed by the Company or any of its Subsidiaries has been proposed in writing by any Governmental Entity. As of the date hereof, no written claim has ever been made by any Governmental Entity that the Company or any of its Subsidiaries is subject to taxation in a jurisdiction in which it does not file Tax Returns.
(f) There are (and immediately following the Effective Time there will be) no material Taxes Liens on the assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Liens.
(g) Neither the Company nor any of its Subsidiaries is has (i) in the six calendar years prior to the date of this Agreement been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (ii) ever been a party to any Tax sharing, indemnification or Tax sharing or similar Tax agreement (allocation agreement, other than an agreement that is not principally regarding Taxes, or (iii) any such agreement solely between liability for the Taxes of any person other than the Company and its existing Subsidiaries and customary under Treasury Regulations Section 1.1502-6 (or any similar provision of Applicable Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by contract, by operation of law or otherwise, other than pursuant to commercial Contracts (or Contracts with customary terms entered into in the ordinary course Ordinary Course the principal purposes of business) not primarily related which is unrelated to Taxes).
(h) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any material deduction or loss from Taxable income for any period or portion thereof after the Effective Time as a result of any (i) is liable for Taxes change in method of any other Person accounting prior to the Effective Time, (other than ii) installment sale or open transaction disposition made prior to the Effective Time, to the extent not reflected in the Company and Balance Sheet, (iii) prepaid amount received outside the Ordinary Course prior to the Effective Time or (iv) election made under Section 108(i) of the Code (or under any similar provision of Applicable Law) prior to the Effective Time. Neither the Company nor any of its SubsidiariesSubsidiaries has made an election pursuant to Section 965(h) of the Code.
(i) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Treasury Regulation Section 1.1502-6 355 of the Code (or any similar provision of state, local local, or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in non-U.S. law) within the ordinary course two calendar years prior to the date of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionthis Agreement.
(j) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or non-U.S. law).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will has not bebeen at any time, treated as an a “investment companyUnited States real property holding corporation” within the meaning of Section 368(a)(2)(F897(c)(2) of the Code.
(l) Except To the Knowledge of the Company, the Company and each of its Subsidiaries is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”) and to the Knowledge of the Company, the Merger will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(m) Neither the Company nor any of its Subsidiaries has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.
(n) Each of the Company and its Subsidiaries are in material compliance with all transfer pricing Laws, and all related material documentation required by such Laws has been timely prepared or obtained and, if necessary, retained.
(o) Neither the Company nor any of its Subsidiaries have requested, has received or is subject to any written ruling of a Taxing authority that will be binding on it for any taxable period ending after the Closing Date or has entered into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. law).
(p) To the Knowledge of the Company, except as expressly contemplated by this Agreement Agreement, there exists no facts, and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Bioceres Crop Solutions Corp.), Merger Agreement (Marrone Bio Innovations Inc)
Taxes. (a) All material Tax Each of Holdings and its Affiliates has duly filed, or caused to be filed on its behalf, in a timely manner with the appropriate Governmental Authorities all Returns which were required to be filed by or with respect to the Company or any on behalf of Holdings and each of its Subsidiaries have been timely filed (taking into account any applicable extensions), all Affiliates. All such Tax Returns (taking into account all amendments thereto) are true, were correct and complete in all material respects, . All Taxes of Holdings and all material Taxes due and payable each of its Affiliates (whether or not shown on any Tax ReturnReturns) due and owing prior to the date of this Agreement have been paidpaid in full or otherwise have been (or will be) adequately reserved for in the Holdings Consolidated Financial Statements and/or any subsequent financial statements of Holdings for the periods relevant for such Tax period, and all Taxes of Holdings and its Affiliates (whether or not shown on any Returns) due and owing with respect to the period (or portion thereof) after the date of this Agreement and ending on or before the Closing Date will be incurred in the ordinary course of business and will be paid in full to the extent required to be paid prior to the Closing Date or otherwise adequately reserved for on the books and records of Holdings. There are no Encumbrances on any of the assets of Holdings and its Affiliates with respect to Taxes, other than Permitted Encumbrances.
(b) The Company and With respect to each of Holdings and its Subsidiaries have withheld from amounts owing to any employeeAffiliates, creditor or other Person all material (i) no deficiencies for Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimclaimed, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company for which Holdings or its Affiliates may have any of its Subsidiaries that remains unresolved or unpaid.
liability, (eii) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waiverspending, extensions or, to Holdings’ Knowledge, threatened audits, investigations or written requests claims for any waivers or extensions of any statute of limitations currently in effect with respect relating to any material liability in respect of Taxes of the Company or with any Governmental Authority, and (iii) there are no matters under discussion by any of Holdings or its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement Affiliates with any Governmental Authority with respect to Taxes. Neither Taxes that may result in an additional amount of Taxes for which Holdings or its Affiliates may have any liability.
(c) Except as set forth in the Company SEC Documents, neither Holdings nor any of its Subsidiaries Affiliates has made a change of any method of accounting with respect payments, is obligated to make any Taxes.
(g) Neither the Company nor any of its Subsidiaries payments, or is a party to any Tax indemnification or Tax sharing or similar Tax agreement that under certain circumstances could obligate it to make any payments that (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts i) would be considered “excess parachute payments” under Code Section 280G (or Contracts entered into any corresponding provision of state or local law), (ii) that will not be deductible under Code Section 280G (or any corresponding provision of state or local law), or (iii) that would not be fully deductible as a result of Code Section 162(m) (or any corresponding provision of state or local law). Neither Holdings nor any of its Affiliates is a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period specified in the ordinary course of business) not primarily related to TaxesCode Section 897(c)(1)(A)(ii).
(hd) Neither the Company nor any No statute of its Subsidiaries (i) is liable for limitations in respect of Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company waived and no extension of time with respect to a Tax assessment or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries deficiency has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or been agreed to take any action, nor to the knowledge by or on behalf of the Company Holdings or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentAffiliates.
Appears in 2 contracts
Samples: Merger Agreement (Prospect Medical Holdings Inc), Merger Agreement (Lee Samuel Sang-Bum)
Taxes. (a) All material Each Company Party has filed within the required time periods (after giving effect to any permitted extensions) all federal, state and other Tax Returns returns required to be have been filed by it or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respectsthem, and has paid all material Taxes which were due and payable (whether by it or not shown on any Tax Return) them, prior to the date hereof, other than Taxes that are being contested in good faith and for which reserves have been paidproperly established and specifically set forth on the Pro Forma Closing Balance Sheet.
(b) The Each Company Party has withheld and each of its Subsidiaries have paid all Taxes required to be withheld from and paid by it or them in connection with amounts paid or owing to any employee, creditor creditor, shareholder or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird party.
(c) There (i) No Company Party has been advised that any of its Tax returns or the Tax returns filed by any of its current or former holders of its Capital Stock have been or are being audited by any Governmental Authority; (ii) there are no Liens agreements, waivers or other arrangements providing for an extension of time with respect to the assessment of any Taxes or deficiency against any Company Party; (other than Permitted Liensiii) upon there are no actions, suits, proceedings or claims now pending by or against any Company Party in respect of any Taxes or assessments; and (iv) there is no pending or, to the property or assets knowledge of the Company Parties, threatened audit or investigation of any Company Party by any Governmental Authority relating to any Taxes or assessments, or any of its Subsidiariesclaims for additional taxes or assessments asserted by any Governmental Authority.
(d) No claim, assessment, deficiency Company Party is a party to or proposed adjustment for any material amount of Tax has been asserted in writing or assessed bound by any Governmental Authority tax sharing, tax indemnity or tax allocation agreement or other similar arrangement.
(e) The accruals and reserves for Taxes payable or its equivalent on the books of the Parent and its Subsidiaries are adequate (determined in accordance with GAAP) and are at least equal to the liability for Taxes of such entity for each period. There exists no proposed Tax assessment against the Company Parent or any of its Subsidiaries. All Taxes that the Parent or any of its Subsidiaries that remains unresolved is or unpaid.
(e) There is no material Tax audit was required by Applicable Law to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper Governmental Authority or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesPerson.
(f) Neither the Company nor any of its Subsidiaries has made a request for Each plan, program, or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries arrangement which is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” nonqualified deferred compensation plan within the meaning of Section 368(a)(2)(F) 409A of the Code is identified as such on Schedule 3.17. Since December 31, 2004, each Company Party has operated and maintained each such identified plan, program, or arrangement in accordance with the requirements of IRS Notice 2005-1 and a good faith, reasonable interpretation of Section 409A of the Code and its purpose with respect to amounts deferred (within the meaning of Section 409A of the Code) after December 31, 2004.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners Iii Lp), Securities Purchase Agreement (Butler International Inc /Md/)
Taxes. (a) All Each of the Transferred FH Companies and their Closing Subsidiaries and, to the extent related to the FH Business, each FH Asset Seller has (i) timely filed (or had timely filed on its behalf) with the appropriate Tax Authorities all income and other material Tax Returns required to be filed by or with respect to the Company or any on behalf of its Subsidiaries have been timely filed (taking into account any applicable extensions)it, all and each such Tax Returns (taking into account all amendments thereto) are true, correct Return was complete and complete accurate in all material respects, and (ii) timely paid (or had paid on its behalf) all material Taxes due and payable (owing, regardless of whether required to be shown or not shown reported on any a Tax Return) have been paid.;
(b) The Company and each There is no examination, audit or other action of its Subsidiaries have withheld from amounts owing or relating to any employee, creditor Tax Return pending against or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to any of the Transferred FH Companies or their Closing Subsidiaries in respect of any material Tax and no written notice of such Taxes.an examination, audit or other action with respect to any material Tax has been received by Seller, any Affiliate of Seller, any Transferred FH Company or its Closing Subsidiaries, in each case that relates primarily to the FH Business;
(c) There are no Liens No deficiency for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any a material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved the Transferred FH Companies or unpaid.their Closing Subsidiaries;
(d) There are no material liens for Taxes upon the FH Shares, the Acquired FH Assets, the FH Assets or the Assets or property of any of the Transferred FH Companies or their Closing Subsidiaries, except for Permitted Encumbrances;
(e) There is no material Tax audit agreement or other examination document extending, or having the effect of extending, the period of assessment or collection of any material Taxes by or on behalf of any Transferred FH Company or its Closing Subsidiaries other than as a result of any such Transferred FH Company or Closing Subsidiary being a member of any Affiliated Group that includes Seller or any of its Subsidiaries presently in progress with respect to any material Taxes, that are neither Transferred FH Companies nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Closing Subsidiaries.;
(f) Neither None of the Company nor Transferred FH Companies or any of its their Closing Subsidiaries has made distributed to its shareholders or security holders stock or securities of a request for controlled corporation, nor has stock or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change securities of any method Transferred FH Company or Closing Subsidiary been distributed, in each case in a transaction to which Section 355 of accounting with respect the Code applies in the three years prior to any Taxes.the date of this Agreement;
(g) Neither Other than those entities listed on Schedule 3.10(g) of the Company nor Seller’s Disclosure Letter, none of the Transferred FH Companies or any of its their Closing Subsidiaries has made an entity classification (“check-the-box”) election under Section 7701 of the Code;
(h) None of the Transferred FH Companies or any of their Closing Subsidiaries has engaged in a “listed transaction” as set forth in Treasury Regulation Section 301.6111-2(b)(2) or any analogous provision of state or local Law;
(i) None of the Transferred FH Companies or any of their Closing Subsidiaries is a party to a gain recognition agreement under Section 367 of the Code that will not be triggered in connection with the transactions contemplated by this Agreement;
(j) For the taxable year immediately preceding the current taxable year, Seller has filed a consolidated federal income Tax Return with Colfax Fluid Handling Reliability Services Company; and
(k) None of the Transferred FH Companies or their Closing Subsidiaries will be required to include any Tax indemnification material item of income in, or Tax sharing or similar Tax agreement (other than exclude any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts material item of deduction from, taxable income for any taxable period (or Contracts entered into in portion thereof) ending after the ordinary course Closing Date as a result of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes any adjustments under Section 481 of any other Person the Code (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax Law) made prior to the Closing Date, (ii) any deferred intercompany gain or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into Law) in the ordinary course respect of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately transaction occurring prior to the Share Exchange Closing will not beDate, treated as an “investment company” within (iii) any installment sale or open transaction disposition made on or prior to the meaning of Closing Date, (iv) any prepaid amount received on or prior to the Closing Date, or (v) any election made pursuant to Section 368(a)(2)(F108(i) of the Code.Code on or prior to the Closing Date;
(l) Except insofar as contemplated by Section 3.6 and Section 3.11 relate to Taxes, notwithstanding anything in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of contrary, the Company representations and warranties made by Seller in this Section 3.10 are the sole and exclusive representations and warranties made regarding Taxes or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended other Tax Treatmentmatters.
Appears in 2 contracts
Samples: Purchase Agreement (Circor International Inc), Purchase Agreement (Colfax CORP)
Taxes. (a) All Each of Purchaser and its Subsidiaries has (i) timely filed all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respectsrespects when filed, and (ii) timely paid or accrued (in accordance with GAAP) all material Taxes due for all tax periods required to be paid or accrued by any of them, and payable (whether iii) withheld from its employees, creditors or not shown on any other third parties proper and accurate amounts in all material respects and, to the extent required to be paid, have timely paid to the appropriate authorities or set aside in an account for such purpose such amounts in compliance with all Tax Return) have been paidwithholding provisions (including income, social security and employment Tax withholding for all types of compensation).
(b) The Purchaser has made available to the Company true and correct copies of the United States federal income Tax Returns filed by Purchaser and its Subsidiaries for each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthree prior fiscal years.
(c) There are no Liens pending, and neither Purchaser nor any Subsidiary has received written notice of any, material federal, state, local or foreign Tax audits or examinations of Purchaser or any of its Subsidiaries. No material deficiency for any Taxes has been proposed, asserted or assessed, in writing, against Purchaser or any Subsidiary that has not been resolved and paid in full or properly reflected in the Purchaser SEC Documents.
(other than Permitted Liensd) upon There are no outstanding waivers to extend the property statutory period of limitations applicable to the assessment of any material Taxes or assets of the Company material Tax deficiencies against Purchaser or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company Purchaser nor any of its Subsidiaries is a party to any Tax indemnification agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of any material Taxes, except for such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts agreements entered into by Purchaser or its Subsidiaries in the ordinary course of businessbusiness consistent with past practice.
(f) No material closing agreements, private letter rulings, technical advance memoranda or similar agreement or rulings have been entered into or issued by any Tax authority with respect to Purchaser or any of its Affiliates which are still in effect as of the date of this Agreement.
(g) There are no material Liens for Taxes upon the assets, properties or rights of Purchaser or any of its Subsidiaries that are not primarily related provided for in the Purchaser SEC Documents, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith, which contest, if determined adversely to Taxes)Purchaser, would not individually or in the aggregate have a Purchaser Material Adverse Effect.
(h) Neither the Company Purchaser nor any of its Subsidiaries has been a party to the distribution of stock of a “controlled corporation” as defined in Section 355(a) of the Code in a transaction intended to qualify under Section 355 of the Code within the past two years.
(i) Neither Purchaser nor any of its Subsidiaries has “participated” within the meaning of Treasury Regulation Section 1.6011-4(c)(3)(i)(A) in any “listed transaction” within the meaning of 6011 of the Code and the Treasury Regulations thereunder, as in effect and as amended by any guidance published by the IRS for the applicable period.
(j) Neither Purchaser nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which is liable Purchaser), or has any liability for Taxes of any other Person person (other than the Company and Purchaser or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any analogous or similar provision of state, local local, or foreign Tax Law or tax law), as a transferee or successor successor, by contract or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed all material U.S. federal, state, local and non-U.S. Tax Returns required to be filed by relating to any and all Taxes concerning or with respect attributable to the Company or Company, any of its Subsidiaries have been timely filed (taking into account any applicable extensions)or their respective operations, all and such Tax Returns (taking into account all amendments thereto) are trueReturns, correct and complete in all material respects, are true and all material Taxes due correct and payable (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(b) The Each of the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person has (i) timely paid all material Taxes it is required by applicable Law to pay, and (ii) timely paid or withheld (and timely paid over any withheld amounts to the appropriate Taxing authority) all federal and state income taxes, value-added taxes, Federal Insurance Contribution Act and Federal Unemployment Tax Act amounts, and other Taxes (including, but not limited to, all Taxes required to be reported and withheld on any U.S or non-U.S. stock options) required to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of Neither the Company or nor any of its SubsidiariesSubsidiaries had any liabilities for material unpaid Taxes as of the date of the Balance Sheet that had not been accrued or reserved on such balance sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any material liability for Taxes since the date of the Balance Sheet other than in the ordinary course of business.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against Neither the Company or nor any of its Subsidiaries that remains unresolved has executed any outstanding waiver of any statute of limitations on or unpaidextension of the period for the assessment or collection of any Tax.
(e) There is no material Tax No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect . No material adjustment relating to any material Taxes Tax Return filed by the Company has been proposed in writing by any Governmental Authority. No claim has ever been made by any Governmental Authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that any of them is or may be subject to taxation by that jurisdiction.
(f) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Encumbrances.
(g) Neither the Company nor any of its Subsidiaries is is, or has been at any time, a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between “United States Real Property Holding Corporation” within the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in meaning of Section 897(c)(2) of the ordinary course of business) not primarily related to Taxes)Code.
(h) Neither the Company nor any of its Subsidiaries has (ia) is liable ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (c) any liability for the Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Section Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign Tax Law law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor successor, by contract, by operation of law or by Contract otherwise and (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessd) not primarily related to Taxes) or (ii) has ever been a member of an affiliatedparty to any joint venture, consolidated, combined partnership or unitary group filing other agreement that could be treated as a partnership for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from Taxable income as a result of (a) any change in method of accounting under Section 481(c) of the Code, (b) closing agreement under Section 7121 of the Code (or in the case of (a) and (b), under any similar provision of applicable law), (c) installment sale or open transaction disposition or (d) prepaid amount.
(j) The Company has participated not constituted either a “distributing corporation” or a “controlled corporation” in a “listed transaction” within distribution of stock intended to qualify for tax-free treatment under Section 355 of the meaning of Treasury Regulation 1.6011-4(b)(2)Code.
(k) The Company has not beenengaged in a reportable transaction under Treas. Reg. § 1.6011-4(b), including any transaction that is not, and immediately prior the same as or substantially similar to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) one of the Codetypes of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(l) Except as The Company and each of its subsidiaries is in material compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”) and, to the Company’s knowledge, the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(m) To the Transactions contemplated herebyCompany’s knowledge, neither the Company nor any of its Subsidiaries has taken is subject to Tax in any action country other than its country of incorporation or agreed formation by virtue of having a permanent establishment or other place of business;
(n) The transactions contemplated by this Agreement (including the Offer and the Merger) will not result in the payment or series of payments by the Company or any of its Subsidiaries to take any actionperson of an “excess parachute payment” within the meaning of Section 280G of the Code, nor or any other similar payment, which is not deductible for federal, state, local or foreign Tax purposes. Additionally, there is no Contract to which the Company or any of its Subsidiaries is a party, including the provisions of this Agreement which, individually or collectively, (i) could give rise to the knowledge payment of any amount that would not be deductible pursuant to or Section 280G of the Code, (ii) is subject to Section 409A of the Code, or (iii) could require Parent or any affiliate of Parent to gross up a payment to any employee of the Company or any of its Subsidiaries for Tax related payments or cause a penalty tax under Section 409A of the Code.
(o) The Company and its Subsidiaries are there any facts or circumstancesin compliance in all material respects with the relevant transfer pricing laws, that could including Treasury Regulations promulgated under Section 482 of the Code, and, to the Company’s knowledge, such compliance supports in all material respects a more likely than not standard required under Financial Interpretation No. 48 of FASB Statement No. 109 (“FIN 48”).
(p) To the Company’s knowledge, the Company and its auditors have identified all material uncertain tax positions contained in all material Tax Returns filed by the Company and/or its Subsidiaries and have, for all such positions, established adequate reserves and made appropriate disclosures in the financial statements in accordance with the requirements of FIN 48.
(q) The Company has made available to Parent all Tax Returns and all FIN 48 work papers of the Company and each of its Subsidiaries reasonably be expected to prevent the Transactions from qualifying requested by Parent for the Intended Tax Treatmentall periods since January 1, 2005.
Appears in 2 contracts
Samples: Merger Agreement (Moldflow Corp), Merger Agreement (Autodesk Inc)
Taxes. (a) All (i) Except as set forth in Section 4.14(a) of the Parent Disclosure Letter, all material Tax Returns required to be filed by or with respect to the Company or any of Parent and its Subsidiaries have been timely filed (taking into account any in accordance with all applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, (ii) Parent and its Subsidiaries have timely paid all material Taxes due or claimed to be due, except for those Taxes being contested in good faith and payable (whether or not shown on any Tax Return) for which adequate reserves have been paid.
established in the financial statements of Parent, (biii) The Company all material Employment and each Withholding Taxes and any other material amounts required to be withheld with respect to Taxes have been withheld and either duly and timely paid to the proper Governmental Entity or properly set aside in accounts for such purpose in accordance with applicable Laws and all material sales or transfer Taxes required to be collected by Parent or any of its Subsidiaries have withheld from amounts owing to any employeebeen duly and timely collected, creditor or other Person all material Taxes required by applicable Law caused to be withheldcollected, paid over and either duly and timely remitted to the proper Governmental Authority Entity or properly set aside in a timely manner all accounts for such withheld amounts required to have been so paid over purpose in accordance with applicable Laws, (iv) the charges, accruals and complied in all material respects with all applicable withholding and related reporting requirements reserves for Taxes with respect to such Taxes.
Parent and its Subsidiaries reflected in Parent Balance Sheet are adequate under GAAP to cover Tax liabilities accruing through the date thereof, (cv) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment deficiencies for any material amount of Tax has Taxes have been asserted in writing or assessed by any Governmental Authority assessed, or, to the knowledge of Parent, proposed, against the Company Parent or any of its Subsidiaries that remains unresolved or unpaid.
have not been paid in full, except for those Taxes being contested in good faith and for which adequate reserves have been established in the financial statements of Parent, and (evi) There there is no material Tax action, suit, proceeding, investigation, audit or other examination claim underway, pending or, to the knowledge of the Company Parent, threatened or scheduled to commence, against or with respect to Parent or any of its Subsidiaries presently in progress with respect to of any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTax.
(fb) Neither Except as disclosed in Section 4.14(b) of the Company Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has made a request been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only Parent and any Subsidiaries of Parent) provided for under the Laws of the United States, any foreign jurisdiction or entered into a closing agreement, private letter ruling, advance tax ruling any state or similar agreement with any Governmental Authority with respect to Taxes. Neither locality or could be liable for the Company nor any of its Subsidiaries has made a change Taxes of any method of accounting with respect to any Taxesother Person as a successor or transferee.
(gc) Neither Except as disclosed in Section 4.14(c) of the Company nor any Parent Disclosure Letter or as may be filed as exhibits to the Parent SEC Documents filed and publicly available prior to the date of its Subsidiaries is a party to any this Agreement, there are no Tax sharing, allocation, indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts indemnification provisions included in agreements entered into in the ordinary course of business) not primarily related or similar agreements in effect as between Parent or any of its Subsidiaries or any predecessor or affiliate of any of them and any other party under which Parent or any of its Subsidiaries could be liable for any Taxes of any party other than Parent or any Subsidiary of Parent.
(d) Except as disclosed in Section 4.14(d) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has, as of the Closing Date, entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of material Taxes or the time with respect to the filing of any Return relating to any material Taxes).
(e) There are no Liens for material Taxes on any asset of Parent or its Subsidiaries, except for Permitted Liens and Liens for Taxes being contested in good faith and for which adequate reserves have been established in the financial statements of Parent.
(f) Neither Parent nor its Subsidiaries has requested or is the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any taxing authority with respect to any material Taxes, nor is any such request outstanding.
(g) Each of Parent and its Subsidiaries has disclosed on its Returns all positions taken therein that could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code.
(h) Neither Parent nor its Subsidiaries has entered into, has any liability in respect of, or has any filing obligations with respect to, any transaction that constitutes a “reportable transaction,” as defined in Section 1.6011-4(b)(1) of the Company Treasury Regulations.
(i) Neither Parent 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 (i) is liable change in method of accounting for Taxes a taxable period ending on or prior to the Closing Date under Section 481(c) of any other Person the Code (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to TaxesLaw) or (ii) has ever been a member “closing agreement” as described in Section 7121 of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Code (or any corresponding or similar provision of its Subsidiaries.
(istate, local or foreign Tax Law) Within executed on or prior to the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionClosing Date.
(j) Neither Except as disclosed in Section 4.14(j) of the Company Parent Disclosure Letter, since January 1, 2000, neither Parent nor any of its Subsidiaries has participated in a undergone an “listed transactionownership change” within pursuant to Section 382(g) of the meaning of Treasury Regulation 1.6011-4(b)(2)Code.
(k) The Company Except as disclosed in Section 4.14(k) of the Parent Disclosure Letter, since June 30, 2004, none of Parent nor any of its Subsidiaries has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning been a distributing corporation or a controlled corporation for purposes of Section 368(a)(2)(F) 355 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyParent has made (or will, neither upon request, make) available to the Company nor any correct and complete copies of (i) all U.S. federal Returns of Parent and its Subsidiaries has taken relating to taxable periods ending on or after December 31, 2003, filed through the date hereof, (ii) any action audit report (or agreed to take any action, nor notice of proposed adjustment to the knowledge of extent not “included” in an audit report) within the Company last three years relating to any material Taxes due from or with respect to Parent or any of its Subsidiaries are there and (iii) any facts or circumstances, that could reasonably be expected substantive and non-privileged correspondence and memoranda relating to prevent the Transactions from qualifying for the Intended Tax Treatmentmatters described in clauses (i) and (ii) of this Section 4.14(l).
Appears in 2 contracts
Samples: Merger Agreement (Forest Oil Corp), Merger Agreement (Houston Exploration Co)
Taxes. (a) All material Tax Returns As used in this Agreement, the terms “Tax” and, collectively, “Taxes” mean any and all federal, state and local taxes of any country, assessments and other governmental charges, duties, impositions and liabilities, including escheat, taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, stamp transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other Person with respect to such amounts and including any liability for taxes of a predecessor entity;
(b) Target and its Subsidiaries have prepared and timely filed all returns, estimates, information statements and reports required to be filed by with any taxing authority (“Returns”) relating to any and all Taxes concerning or with respect attributable to the Company Target or any of its Subsidiaries Subsidiaries, or any of their respective operations, due prior to the Closing Date and such Returns are true and correct and have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete completed in all material respects, and all material accordance with Applicable Law. All Taxes due and payable owing (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.when due;
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company date hereof, Target and its Subsidiaries have, and as of the Closing Date, Target and its Subsidiaries will have, (i) timely withheld for inter-company payments and from their respective employees, independent contractors, customers, stockholders, and other Persons from whom they are required to withhold Taxes in compliance with all Applicable Law, and (ii) timely paid all amounts so withheld to the appropriate Governmental Entity or any of its Subsidiaries.taxing authority;
(d) No claimDuring the period of all unexpired applicable statutes of limitations, assessment, neither Target nor any Subsidiary of Target has been delinquent in the payment of any Tax. There is no Tax deficiency outstanding or assessed or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Target or any Subsidiary of its Subsidiaries Target that remains unresolved is not reflected as a liability on the Target’s Financial Statements, nor has Target or unpaid.any Subsidiary of Target executed any agreements or waivers extending any statute of limitations on or extending the period for the assessment or collection of any Tax;
(e) There is no material Tax audit Neither Target nor any Subsidiary of Target has any liabilities for unpaid Taxes that have not been accrued for or other examination reserved on the Target Balance Sheet, whether asserted or unasserted, contingent or otherwise and neither Target nor any Subsidiary of Target has any Knowledge of any basis for the Company assertion of any such liability attributable to Target or any Subsidiary of its Subsidiaries presently in progress Target, or attributable to any of their respective assets or operations;
(f) Neither Target nor any Subsidiary of Target is a party to any tax-sharing agreement or similar arrangement with any other party, and neither Target nor any Subsidiary of Target has assumed any obligation to pay any Tax obligations of, or with respect to any material Taxestransaction relating to, any other Person or agreed to indemnify any other Person with respect to any Tax;
(g) The Returns of Target and its Subsidiaries have never been audited by a government or taxing authority, nor is any such audit in process or pending, and neither Target nor any Subsidiary of Target has the Company or any of its Subsidiaries ever been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.;
(fh) Neither the Company Target nor any Subsidiary of Target has ever been a member of an affiliated group of corporations filing a consolidated federal income tax return;
(i) Target has disclosed to Acquiror (i) any Tax exemption, Tax holiday or other Tax-sharing arrangement that Target or any of its Subsidiaries has made a request for in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or entered into a closing agreementother Tax-sharing arrangement; and (ii) any expatriate tax programs or policies affecting Target or any Subsidiary of Target. Target and its Subsidiaries are in compliance with all terms and conditions required to maintain such Tax exemption, private letter ruling, advance tax ruling Tax holiday or similar agreement with other Tax-sharing arrangement or order of any Governmental Authority with respect Entity and the consummation of the transactions contemplated hereby will not have any adverse effect on the continuing validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sharing arrangement or order;
(j) Target has made available to Taxes. Acquiror copies of all income and other material Returns filed for any taxable periods ending on or after January 1, 2010;
(k) Neither the Company Target nor any Subsidiary of Target has ever been a United States Real Property Holding Corporation within the meaning of Section 897(c)(2) of the Code;
(l) Neither Target nor any Subsidiary of Target has ever constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Closing;
(m) Neither Target nor any Subsidiary of Target has agreed to make, nor is required to make, any adjustment under Section 481 of the Code or corresponding provision of state, local or foreign law by reason of any change in accounting method;
(n) Target and its Subsidiaries has made a change have complied with applicable information reporting and record maintenance requirements of any method Sections 6038, 6038A and 6038B of accounting with respect to any Taxes.the Code and the regulations thereunder;
(go) Neither the Company Target nor any Subsidiary of its Subsidiaries is Target has ever been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax indemnification purposes, nor has Target nor any Subsidiary of Target made a “check-the-box” election under Section 7701 of the Code;
(p) There are (and immediately following the Closing there will be) no Encumbrances on the assets of Target relating to or Tax sharing or similar Tax agreement (attributable to Taxes, other than liens for Taxes not yet due and payable;
(q) Neither Target nor any such agreement solely Subsidiary of Target has ever requested or received any private letter ruling from the Internal Revenue Service or comparable rulings from any other Governmental Entity or taxing agency (domestic or foreign);
(r) The Returns of Target and its Subsidiaries have never been subject to a Code Section 482 adjustment or corresponding provision of state, local or foreign law. Target and its Subsidiaries are in material compliance with all transfer pricing requirements in all jurisdictions in which they do business;
(s) No written claim has been made by a taxing authority (domestic or foreign) in a jurisdiction where Target and its Subsidiaries do not file Returns to the effect that Target or any Subsidiary of Target may be subject to Tax by that jurisdiction. Neither Target nor any Subsidiary of Target organized under the laws of a jurisdiction in the United States has ever had a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the Company United States and its existing Subsidiaries and customary commercial Contracts such foreign country;
(t) Neither Target nor any Subsidiary of Target will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or Contracts entered into portion thereof) ending after the Closing Date as a result of any: (A) “closing agreement” as described in Section 7121 of the ordinary course of business) not primarily related to Taxes).
Code (h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was law) executed on or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Date; (B) intercompany transactions or any excess loss account described in Treasury Regulations under Section 368(a)(2)(F) 1502 of the Code.
Code (lor any corresponding or similar provision of state, local or foreign income Tax law); (C) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action installment sale or agreed to take any action, nor open transaction disposition made on or prior to the knowledge of Closing Date; or (D) prepaid amount received on or prior to the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.Closing Date; and
Appears in 2 contracts
Samples: Merger Agreement (INPHI Corp), Agreement and Plan of Merger (INPHI Corp)
Taxes. (a) All material Tax Returns required to be filed by or with respect to of the Company or any of its Subsidiaries Group Companies have been timely filed (taking into account any in accordance with applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct correct, and complete in all material respects, and all . All material Taxes due and payable (whether or not shown on any a Tax Return) of the Group Companies have been timely paid.
(b) The Company and each . Each of its Subsidiaries have the Group Companies has timely paid or withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such or withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to its employees, independent contractors, creditors and other third parties and timely paid over such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon to the property or assets appropriate Governmental Authority. None of the Group Companies has executed any outstanding waiver of any statute of limitations or outstanding extension of the period, for the assessment or collection of any material Tax. To the Knowledge of the Company, no audit or Action of, or with respect to, any material Tax Return or material Taxes of any Group Company is currently in progress or any of its Subsidiaries.
(d) threatened. No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any a Governmental Authority against the Company Group Companies that has not been satisfied by payment, settled or any of its Subsidiaries that remains unresolved withdrawn. All preferential tax treatments granted to the Group Companies have been properly approved by or unpaid.
(e) There is no material Tax audit or other examination of filed with the Company or any of its Subsidiaries presently competent Governmental Authorities in progress accordance with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxesapplicable Laws. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no No written claim has been made by any a Governmental Authority in any jurisdiction where the any Group Company or any of its Subsidiaries does has not file filed Tax Returns Return that it such Person is or may be subject to taxation Tax or any filing requirement related to Tax in that jurisdiction.
(j) Neither . None of the Company nor Group Companies is a party to or bound by, or has any of its Subsidiaries has participated obligation under, any Tax allocation agreement, Tax indemnity agreement, Tax sharing agreement or similar contract or arrangement to indemnify any other Person with respect to Taxes that will be in a “listed transaction” within effect after the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) First Closing. The Company has not beencharges, is not, accruals and immediately prior reserves for Taxes with respect to the Share Exchange Closing will not be, treated as an “investment company” within Group Companies reflected on the meaning of Section 368(a)(2)(F) books and records of the Code.
(l) Except as contemplated by this Agreement and Group Companies are adequate to cover material Tax liabilities accruing through the Transactions contemplated herebyend of the last period for which the Group Companies ordinarily record items on their respective books. Since the end of the last period for which the Group Companies ordinarily record items on their respective books, neither none of the Company nor Group Companies has engaged in any of its Subsidiaries has transaction, or taken any action that would materially impact any Tax asset or agreed to take any action, nor to the knowledge Tax liability of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentGroup Companies.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (China Biologic Products Holdings, Inc.)
Taxes. (a) All Each of the Company and each of its Subsidiaries has (i) duly and timely filed (taking into account extensions) with the appropriate Taxing Authorities all material Tax Returns required to be filed by it in respect of any Taxes, which Tax Returns were true, correct and complete in all material respects, (ii) duly and timely paid all Taxes shown as due and payable by it on such Tax Returns, (iii) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each of its Subsidiaries through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books and (iv) complied in all material respects with all Laws applicable to the information reporting, payment and withholding of Taxes and has timely withheld and paid over to the respective proper Taxing Authorities all material Taxes required to be so withheld and paid over.
(b) There is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or threatened against or with respect to the Company or any of its Subsidiaries in respect of any Taxes or Tax Returns, in each case, the resolution of which would reasonably be expected to result in a material liability or obligation to the Company or any Subsidiary of the Company and no requests for waivers of time to assess any such Taxes have been timely filed (taking into account granted and are still in effect, or are pending. Neither the Company nor any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing is liable for Taxes of any Person (other than the Company and its Subsidiaries) as a result of being (i) a transferee or successor of such Person, (ii) a member of an affiliated, consolidated, combined or unitary group that includes such Person as a member or (iii) a party to any employeea tax sharing, creditor tax indemnity, tax allocation or similar agreement, whether express or implied, other Person all material Taxes required by applicable Law to be withheld, paid over than contracts or agreements entered into in the ordinary course of business or pursuant to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesterms of commercial financing arrangements.
(c) There are no material Liens on any of the assets or properties of the Company or any of its Subsidiaries that arose in connection with any Tax (other than Liens for Taxes (i) not yet due and payable or (ii) being contested in good faith and for which adequate reserves have been established in accordance with GAAP on the Company Financial Statements).
(d) There are no Tax rulings, requests for rulings, closing agreements or other than Permitted Lienssimilar agreements or rulings with respect to material Taxes (including any gain recognition agreements under Section 367 of the Code or any application for a change in accounting method under Section 481 of the Code) upon the property in effect or assets of filed with any Taxing Authority relating to the Company or any of its Subsidiaries.
(de) No claimSince January 1, assessment2008, deficiency or proposed adjustment for any no material amount of Tax claim has been asserted made by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently such Subsidiary is or may be subject to Tax in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesjurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries transaction that is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into “listed transaction” as defined in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502§1.6011-6 4(b)(2). The transactions contemplated by this Agreement will not trigger any income or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related gain to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of for federal income tax purposes under Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated Code in respect of a distribution by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected occurring prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing.
Appears in 2 contracts
Samples: Merger Agreement (FOHG Holdings, LLC), Merger Agreement (Frederick's of Hollywood Group Inc /Ny/)
Taxes. (a) All Company and each of its subsidiaries have timely filed all material Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by or with respect to the on behalf of Company or any and each of its Subsidiaries have been timely filed (taking into account subsidiaries with any applicable extensions)Tax authority, all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and Company and each of its subsidiaries have paid all material Taxes shown to be due and payable (whether or not shown on any Tax Return) have been paidsuch Returns.
(b) The Company and each of its Subsidiaries subsidiaries have withheld from amounts owing with respect to any employeeits employees all federal and state income Taxes, creditor or Taxes pursuant to the Federal Insurance Contribution Act ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Person all material Taxes required by applicable Law to be withheld, paid over except such Taxes which are not material to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesCompany.
(c) There are no Liens for Taxes (other than Permitted Liens) upon Neither Company nor any of its subsidiaries has been delinquent in the property payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assets of the assessed against Company or any of its Subsidiariessubsidiaries, nor has Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(d) No claim, assessment, deficiency audit or proposed adjustment for other examination of any material amount Return of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There subsidiaries by any Tax authority is no material Tax audit or other examination of the presently in progress, nor has Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect .
(e) No adjustment relating to any material Taxes of the Returns filed by Company or any of its Subsidiariessubsidiaries has been proposed in writing formally or informally by any Tax authority to Company or any of its subsidiaries or any Tax or financial representative thereof.
(f) Neither the Company nor any of its Subsidiaries subsidiaries has made a request any liability for unpaid Taxes which has not been accrued for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither reserved on the Company nor Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Company, other than any liability for unpaid Taxes that may have accrued since the -13- 18 date of the Company Balance Sheet in connection with the operation of the business of Company and its Subsidiaries has made a change of any method of accounting with respect to any Taxessubsidiaries in the ordinary course.
(g) Neither the There is no agreement, plan or arrangement to which Company nor or any of its Subsidiaries subsidiaries is a party, including this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of Company or any of its subsidiaries that, individually or collectively, would be reasonably likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company is a party or by which it is bound to compensate any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between individual for excise taxes paid pursuant to Section 4999 of the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Code.
(h) Neither the Company nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (if) is liable for Taxes asset (as defined in Section 341(f)(4) of any other Person (other than the Company and its SubsidiariesCode) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owned by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesCompany.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Neither Company or nor any of its Subsidiaries does not file subsidiaries is party to or has any obligation under any Tax-sharing, Tax Returns that it is indemnity or may be subject to taxation in that jurisdictionTax allocation agreement or arrangement.
(j) Neither Except as may be required as a result of the Merger, Company nor and its subsidiaries have not been and will not be required to include any adjustment in taxable income for any Tax period (or portion thereof) pursuant to Section 481 of its Subsidiaries has participated in the Code or any comparable provision under state or foreign Tax laws as a “listed transaction” within result of transactions, events or accounting methods employed prior to the meaning of Treasury Regulation 1.6011-4(b)(2)Closing.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” None of Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 368(a)(2)(F168(h) of the Code.
(l) Except as contemplated by this Agreement and Company has not been distributed in a transaction qualifying under Section 355 of the Transactions contemplated hereby, neither Code within the Company nor any of its Subsidiaries has taken any action or agreed to take any actionlast two years, nor to the knowledge has Company distributed any corporation in a transaction qualifying under Section 355 of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent Code within the Transactions from qualifying for the Intended Tax Treatmentlast two years.
Appears in 2 contracts
Samples: Merger Agreement (Neoforma Com Inc), Merger Agreement (Eclipsys Corp)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the of each Company or any of its Subsidiaries Entity have been duly and timely filed as required by applicable Law (taking into account within any applicable extensions), extension periods) and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material . All Taxes due and payable on or before the Closing Date (whether or not shown or required to be shown on any Tax Return) have been paidtimely paid in full. There has been made available to Purchaser true and complete copies of (i) all Tax Returns of the Company Entities for all taxable periods for which the applicable statute of limitations has not run as of the Closing Date, and (ii) all revenue agents’ reports and other similar reports relating to the audit and examination of the Tax Returns of the Company Entities for all taxable periods ending after December 31, 2015.
(b) All deficiencies asserted or assessments made as a result of any Proceeding by a Governmental Authority of any Tax Returns of any Company Entity have been fully and timely paid. No Proceeding related to any Liability in respect of Taxes or any Tax Return of any Company Entity by any Governmental Authority is presently pending, nor has any Company Entity received any notice of any request for such an audit or other examination.
(c) The Company and Entities have each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes and related has duly and timely withheld and has paid over to the appropriate Governmental Authority all amounts required to be so withheld and paid over in connection with amounts paid or owed to any Employee, independent contractor, creditor, shareholder, or other third party for all periods under all applicable Law, and has complied with all material information reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets and backup withholding provisions of the Company or any of its Subsidiariesapplicable Law.
(d) No claimEach Company Entity is properly registered for and have collected all material sales and use and goods and services and value added and similar Taxes required to be collected, assessmenthas remitted, deficiency or proposed adjustment for any material amount of Tax will remit on a timely basis, such amounts to the appropriate Governmental Authority, or has been asserted furnished properly completed exemption certificates and has maintained all such records and supporting documents in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidmanner required by, and has otherwise been at all relevant times in compliance in all material respects with, all applicable sales and use Tax statutes and regulations.
(e) There is are no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress Liens with respect to Taxes on the assets or business of any material TaxesCompany Entity (other than Permitted Liens), nor has on any of the properties or assets of any Company Entity or the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesShares.
(f) Neither No Company Entity is liable for the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change Taxes of any method Person other than itself as a result of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries filing unitary, combined or consolidated Tax Returns, as a transferee or successor or by Contract, or is a party to or bound by any Tax allocation, Tax indemnification or Tax sharing agreement or similar Tax agreement arrangement (in each case, other than any such agreement solely between the Company and its existing Subsidiaries and customary Taxes imposed under provisions of commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to business the primary purpose of which is other than Taxes).
(hg) Neither The unpaid Taxes of the Company nor Entities did not, as of the Interim Balance Sheet Date, exceed the reserve for actual Taxes (without regard to any of its Subsidiaries (ireserve for deferred Taxes established to reflect timing differences between book and Tax income) is liable which has been separately disclosed on the Interim Balance Sheet. No Company Entity will incur any liability for Taxes of any other Person (from the Interim Balance Sheet Date through the Closing Date other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessbusiness and consistent with reasonable prior practice.
(h) not primarily related No Company Entity has (i) waived any statute of limitations applicable to any claim for Taxes) or , (ii) has ever requested or been a member granted an extension of an affiliated, consolidated, combined or unitary group the time for filing any Tax Return (other than automatic extensions for U.S. federal, state or local income Tax purposesReturns), other than a group the common parent or (iii) granted to any Person any power of which was or attorney that is the Company or currently in force with respect to any of its SubsidiariesTax matter.
(i) Within The Company is not a “foreign person” as defined in Section 1445(f)(3) of the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionCode.
(j) Neither The Company is not and has not been a United States real property holding corporation within the meaning of Code §897(c)(2) at any time during the applicable period specified in Code §897(c)(1)(A)(ii).
(k) No Company nor Entity will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period ending after the Closing Date as a result of any: (i) change in (or improper use of) any method of accounting for a taxable period ending on or prior to the Closing Date, (ii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. Income Tax Law) executed on or prior to the Closing, (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. Income Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing, (v) election under Section 108(i) of the Code (or similar provision of U.S. state, local or non-U.S. Tax Law), (vi) prepaid amount received or deferred revenue accrued on or prior to the Closing Date outside the ordinary course of business, (vii) any income under Section 965(a) of the Code, including as a result of any election under Section 965(h) of the Code with respect thereto or (viii) the application of Section 951, 951A, or 956 of the Code to any interest held in a “controlled foreign corporation” (as defined in Section 957 of the Code) with respect to income earned or recognized, payments received or ownership of “United States property” (as defined in Section 956 of the Code) on or prior to the Closing Date (determined without regard to the limitations under Section 952(c)(1) of the Code) and which, for the avoidance of doubt, is attributable, based on an interim closing of the books at the Closing, to any period ending on or prior to the Closing Date.
(l) Other than with respect to the Spinoff, no Company Entity has ever distributed stock of another Person, or had its Subsidiaries stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code.
(m) No Company Entity has participated in entered into a “listed transaction” within the meaning of Treasury Regulation §1.6011-4(b)(2).
(kn) Schedule 5.19(n) lists the U.S. federal Income Tax classification of each Company Entity. No written claim has ever been made by a Governmental Authority in a jurisdiction where Tax Returns with respect to either the Company or any Company Subsidiary are not filed asserting that any Company Entity is or may be subject to Tax in that jurisdiction. Neither the Company nor any other Company Entity has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax, in each case, in a country other than the country of its formation.
(o) No Company Entity has requested or received a ruling from any Governmental Authority or signed a closing or other agreement with any Governmental Authority which would affect any taxable period after the Closing Date.
(p) No Company Entity has deferred any payroll Taxes or availed itself of any of the Tax deferral, credits or benefits pursuant to the CARES Act or otherwise taken advantage of any change in applicable Law in connection with a Public Health Event that has the result of temporarily reducing (or temporarily delaying the due date of) otherwise applicable payment obligations of the Company to any Governmental Authority. The Company has not been, is not, sought and immediately prior does not intend to the Share Exchange Closing will not be, treated as an “investment company” within the meaning seek a covered loan under paragraph (36) of Section 368(a)(2)(F7(a) of the CodeSmall Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act.
(lq) Except as contemplated by The Company and each Company Entity have complied, and are currently in compliance, with all requirements relating to any Tax credits, incentives and any other benefits claimed from an applicable Tax jurisdiction; and, to the Company’s Knowledge, entering into the Transactions will not result in any claw-back of such benefits previously claimed. Nothing in this Section 5.19 or otherwise in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action shall be construed as a representation or agreed to take any action, nor warranty with respect to the knowledge amount or availability in a taxable period (or portion thereof) beginning after the Closing Date of any net operating loss, capital loss, Tax credit carryover or other Tax asset generated or arising in or in respect of a taxable period (or portion thereof) ending on or before the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 2 contracts
Samples: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Taxes. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensions), extensions of time for filing) and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material . All Taxes that are due and payable by the Company or any of its Subsidiaries (whether or not shown reflected on any Tax Return) have been duly and timely paid. All withholding Tax requirements imposed on or with respect to payments by the Company or any of its Subsidiaries to employees, creditors, equityholders or other Persons have been satisfied, and the Company and its Subsidiaries have complied in all respects with all information reporting (and related withholding) and record retention requirements.
(b) The There is not in force any waiver or agreement for any extension of time for the assessment or payment of any Tax by the Company and each or any of its Subsidiaries have withheld from amounts owing to (other than any employee, creditor extension or other Person all material Taxes required by applicable Law to be withheld, paid over to waiver entered into in the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesordinary course of business).
(c) There is no outstanding claim, assessment or deficiency against the Company or any of its Subsidiaries for any Taxes that has been asserted in writing by any Taxing Authority other than claims being contested in good faith through appropriate proceedings and for which adequate reserves have been made in accordance with GAAP. There are no Liens for Proceedings pending or threatened in writing regarding any Taxes (other than Permitted Liens) upon of the property Company or any of its Subsidiaries or the assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax allocation, sharing or similar Tax agreement indemnity Contract or arrangement (other than excluding (i) any such agreement Contract or arrangement solely between or among the Company and/or any of its Subsidiaries, and its existing Subsidiaries and (ii) any customary provisions contained in any commercial Contracts (or Contracts agreement entered into in the ordinary course of business) business and not primarily related relating to TaxesTax).
(h) . Neither the Company nor any of its Subsidiaries has been a member of an affiliated, consolidated, combined, unitary or similar group for purposes of filing any Tax Return (iother than a group the common parent of which is the Company) is liable or has any liability for Taxes of any other Person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor successor, by reason of assumption, or by Contract operation of Law.
(other than customary commercial Contracts e) Neither the Company nor any of its Subsidiaries has participated, or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(f) Neither the Company nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or Contracts entered into so much of Section 356 of the Code as relates to Section 355 of the Code) (i) in the ordinary course two (2) years prior to the date of business) not primarily related to Taxes) this Agreement or (ii) has ever been as part of a member “plan” or “series of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group related transactions” (within the common parent meaning of which was or is Section 355(e) of the Company or any of its SubsidiariesCode) in conjunction with the Transactions.
(ig) Within the past three (3) years, no No written claim has been made by any Governmental Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Returns Return that it is or may be subject to taxation any Tax or required to file any Tax Return in that such jurisdiction.
(h) There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries, except for Permitted Encumbrances with respect to Taxes described in clause (b) of the definition of Permitted Encumbrances.
(i) No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into with or issued by any Taxing Authority within the three (3)-year period immediately preceding the date of this Agreement with respect to the Company or any of its Subsidiaries.
(j) Neither the Company nor any of its Subsidiaries has participated in is a “listed transactionU.S. shareholder” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F951(b) of the Code) of any foreign corporation which may be required to include in income any amounts under Section 951(a) or 951A(a) of the Code.
(lk) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken deferred any action or agreed to take any action, nor payroll Taxes pursuant to the knowledge CARES Act, an executive order or any similar provision of other applicable Law.
(l) The Company is, and has been since formation, properly classified for U.S. federal income tax purposes as a corporation. Notwithstanding any other provisions of this Agreement to the contrary, the representations and warranties made in this Section 4.12, in Section 4.10 and in Section 4.27 are the sole and exclusive representations and warranties of the Company or any of and its Subsidiaries are there any facts or circumstances, that could reasonably be expected with respect to prevent the Transactions from qualifying for the Intended Tax TreatmentTaxes.
Appears in 2 contracts
Samples: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Extraction Oil & Gas, Inc.)
Taxes. (a) All material The Company and each of its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and ; (ii) have paid all material amounts of Taxes due and payable (whether or not shown on any Tax ReturnReturns); (iii) have been paid.
(b) The paid all material amounts of Taxes that the Company and each or any of its Subsidiaries have withheld are obligated to withhold from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to third party; (iv) have been so paid over and complied in all material respects with all applicable withholding the collection and related reporting requirements with respect to such Taxes.
(c) There are no Liens for remittance of sales and similar Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against that the Company or any of its Subsidiaries that remains unresolved are obligated to collect and remit; and (v) have not waived any statute of limitations with respect to Taxes or unpaidagreed to any extension of time with respect to a Tax assessment or deficiency.
(eb) There are no Actions pending or, to the Knowledge of the Company, that have been threatened in respect of Taxes or Tax matters.
(c) There is no material Tax audit Lien (other than a Permitted Lien) on any of the assets of the Company or other examination those of any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay, or delay (or alleged delay) in paying, any Tax.
(d) No claim has been made within the past six years, in writing, by a Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has do not file Tax Returns that the Company or any of its Subsidiaries been notified in writing of any request Subsidiary is or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect may be subject to any material Taxes of the Company or any of its Subsidiariestaxation by that jurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(ge) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or allocation, Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts Contract entered into in before the ordinary course of business) not primarily related Closing pursuant to Taxes)which it will have any obligation after the Closing.
(hf) Neither the Company nor any of its Subsidiaries (i) is liable has any liability for Taxes of any other Person, including any obligation to indemnify or otherwise succeed to the liability of any other Person for Taxes, as a transferee or successor, or pursuant to any Law (other than the Company and its Subsidiaries) under including Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law)), Contract, or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(ig) Within the past three (3) years, no written claim has been made All material transactions entered by any Governmental Authority where the Company or any of its Subsidiaries does not file have satisfied applicable transfer pricing Laws.
(h) There are no Tax Returns that it is rulings, requests for rulings or may closing agreements in effect or pending with any Governmental Entity relating to the Company or any of its Subsidiaries the effect of which would be subject binding on the Company or any of its Subsidiaries after the Closing Date.
(i) Neither the Company nor any of its Subsidiaries will be required to taxation include any material item of income, or exclude any material item of deduction from, taxable income for any taxable period ending after the Closing Date as a result of any (i) change in that jurisdictionmethod of accounting under Section 481 of the Code (or any similar provision of state, local or foreign Law), (ii) use of an improper method of accounting, (iii) closing agreement as described under Section 7121 of the Code (or any similar provision of state, local or foreign Law), (iv) intercompany transaction or excess loss account under Section 1502 of the Code and the Treasury Regulations thereunder (or any similar provision of state, local or foreign Law), (v) installment sale or open transaction disposition; (vi) any prepaid amount; or (vii) an election under Section 108(i) of the Code.
(j) Neither the Company nor any of its Subsidiaries has participated in a entered into any “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(k) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebypast three years, neither the Company nor any of its Subsidiaries has taken any action been a “distributing corporation” or agreed a “controlled corporation” in a distribution intended to take any action, nor to the knowledge qualify under Section 355(a) of the Code.
(l) Neither the Company or nor any of its Subsidiaries are there any facts has a permanent establishment (within the meaning of an applicable Tax treaty) or circumstancesotherwise has an office or fixed place of business in a country other than the country in which it is organized.
(m) The Company has made available to Parent true and correct copies of the United States federal income Tax Returns filed by the Company and its Subsidiaries for each of the fiscal years ended in 2015, 2014 and 2013.
(n) It is agreed and understood that could reasonably be expected to prevent no representation or warranty is made by the Transactions from qualifying for Company in this Agreement in respect of Tax matters, other than the Intended Tax Treatmentrepresentations and warranties set forth in Section 4.5, Section 4.6, Section 4.7(c), Section 4.8 and this Section 4.14.
Appears in 2 contracts
Samples: Merger Agreement (Cintas Corp), Merger Agreement (G&k Services Inc)
Taxes. (a) All Each of the Company and its Subsidiaries has filed all material Tax Returns that it was required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any file under applicable extensions), all Laws. All such Tax Returns (taking into account all amendments thereto) are true, were correct and complete in all material respects, respects when filed and have been prepared in compliance with all applicable Laws. All material Taxes due and payable owing by any of the Company and its Subsidiaries (whether or not shown on any Tax Return) have been paid.
(b) The . Neither the Company and each nor any of its Subsidiaries have withheld from amounts owing currently is the beneficiary of any extension of time within which to file any employee, creditor or other Person all material Taxes required Tax Return. No claim has been made in writing by applicable Law to be withheld, paid over to the proper any Governmental Authority Entity in a timely manner all jurisdiction where any of the Company and its Subsidiaries does not file Tax Returns that such withheld amounts required Person is or may be subject to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) taxation by that jurisdiction. There are no Liens for Taxes (other than Permitted LiensTaxes not yet due and payable) upon any of the property properties or assets of the Company or any of its Subsidiaries.
(db) No claim, assessment, deficiency or proposed adjustment for any material amount Each of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of and its Subsidiaries that remains unresolved has withheld and, without limiting the generality of Section 4.13(a), paid all material Taxes required to have been withheld and paid in connection with any amounts paid or unpaidowing to any employee, independent contractor, creditor, stockholder or other third party.
(ec) There is no material No Tax audit Proceedings or other examination audits are pending or, to the Knowledge of the Company Company, threatened in writing, nor, to the Knowledge of the Company, are there any investigations or any of its Subsidiaries presently in progress inquiries, with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fd) Neither the Company nor any of its Subsidiaries has made a request for waived any statute of limitations in respect of Taxes or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with agreed to any Governmental Authority extension of time with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTax assessment or deficiency.
(ge) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification agreement, contract, arrangement or Tax sharing plan that, individually or similar Tax agreement in the aggregate, has resulted or would result in the payment of (other than i) any such agreement solely between "excess parachute payment" within the Company and its existing Subsidiaries and customary commercial Contracts meaning of Code ss.280G (or Contracts entered into in the ordinary course any corresponding provision of businessTax Law) or (ii) any amount that will not primarily related to Taxesbe fully deductible as a result of Code ss.162(m) (or any corresponding provision of Tax Law).
(h) . Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (iiA) has ever been a member of an affiliated, consolidated, combined or unitary group Affiliated Group filing for U.S. federal, state or local a consolidated United States federal income Tax purposes, Return (other than a group the common parent of which was the Company) or is (B) has any liability for the Taxes of any Person (other than any of the Company and its Subsidiaries) under Reg. ss.1.1502-6 (or any corresponding provision of its SubsidiariesTax Law), as a transferee or successor, by contract, or otherwise.
(if) Within the past three (3) years, no written claim has been made by any Governmental Authority where None of the Company and its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) "closing agreement" as described in Code ss.7121 (or any corresponding provision of its Subsidiaries does not file income Tax Returns that it is Law) executed on or may be subject prior to taxation the Closing Date; or (C) intercompany transactions or any excess loss account described in that jurisdictionTreasury Regulations under Code ss.1502 (or any corresponding provision of income Tax Law).
(jg) Neither the Company nor any of its Subsidiaries has participated distributed stock of another Person, or has had its stock distributed by another Person, in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)transaction that was purported or intended to be governed in whole or in part by Code ss.355 or ss.361.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Edison Schools Inc), Merger Agreement (Edison Schools Inc)
Taxes. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensionsvalid extensions of time for filing), and all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material . All Taxes that are due and payable by the Company or any of its Subsidiaries (whether or not shown reflected on any Tax Return) have been paidduly and timely paid or adequate reserves in respect thereof have been established on the financial statements of the Company in accordance with GAAP. All withholding Tax requirements imposed on or with respect to payments by the Company or any of its Subsidiaries to employees, creditors, equityholders or other Persons have been satisfied, and the Company and its Subsidiaries have complied in all respects with all related information reporting and record retention requirements.
(bii) The There is not in force any waiver or agreement for any extension of time for the assessment or payment of any Tax by the Company and each or any of its Subsidiaries have withheld from amounts owing (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), and no power of attorney that has been granted by the Company or any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements of its Subsidiaries with respect to such Taxesa Tax matter is currently in effect.
(ciii) There is no outstanding claim, assessment or deficiency against the Company or any of its Subsidiaries for any Taxes that has been asserted in writing by any Taxing Authority. There are no Liens for Proceedings with respect to Taxes (other than Permitted Liens) upon the property pending or assets of threatened in writing against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fiv) Neither the Company nor any of its Subsidiaries has been a member of an affiliated, consolidated, combined, unitary or similar group for purposes of filing any Tax Return (other than a group the common parent of which is the Company or any of its Subsidiaries) or has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by reason of assumption or by operation of Law.
(v) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (1) any change in method of accounting occurring prior to the Closing pursuant to Section 481 of the Code (or any similar provision of state, local, or non-U.S. Law), (2) any installment sale or open transaction made a request for prior to Closing, (3) any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to or existing as of immediately prior to the Closing, (4) any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing, or (5) any deferred revenue or prepaid amount received or paid prior to the Closing outside of the ordinary course of business.
(vi) No written claim has been made by any Taxing Authority in a closing agreementjurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Return that the Company or such Subsidiary is or may be subject to any Tax or required to file any Tax Return in such jurisdiction.
(vii) There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority except for Permitted Encumbrances with respect to Taxes. Taxes described in clause (b) of the definition of Permitted Encumbrances.
(viii) Each of the Company and its Subsidiaries are in compliance with all applicable transfer pricing Tax Laws, including Section 482 of the Code and the Treasury Regulations promulgated thereunder and any similar provision of state, local or non-U.S. Tax Law.
(ix) Neither the Company nor any of its Subsidiaries has made participated, or is currently participating, in a change of any method of accounting with respect to any Taxes“listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(gx) Neither the Company nor any of its Subsidiaries has applied for any relief under, deferred the payment of Tax or the recognition of taxable income or gain as result of, or is otherwise subject to any Tax provision of, a Pandemic Response Law.
(b) Neither the Company nor any of its Subsidiaries is a party to, has any obligation under or is bound by any material Tax allocation, sharing or indemnity Contract or arrangement pursuant to which it will have any potential material liability to any Person after the First Merger Effective Time (excluding (i) the Tax indemnification Matters Agreement, (ii) any Contract or Tax sharing or similar Tax agreement (other than any such agreement arrangement solely between or among the Company and/or any of its Subsidiaries, and its existing Subsidiaries and (iii) any customary provisions contained in any commercial Contracts (or Contracts agreement entered into in the ordinary course of business) business and not primarily related relating to TaxesTax).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jc) Neither the Company nor any of its Subsidiaries has participated constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the two (2) years prior to the date of this Agreement.
(d) To the knowledge of the Company, the consummation of the Transactions is not reasonably expected to cause (x) the Spin to fail to qualify for tax-free treatment under Section 355 of the Code or (y) the Company shares distributed in the Spin to not be treated as “listed transactionqualified property” within (for purposes of Section 355(c)(2) or Section 361(c)(2) of the meaning Code) by reason of Treasury Regulation 1.6011-4(b)(2the application of Section 355(d) or Section 355(e) of the Code).
(ke) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to To the knowledge of the Company, (i) no property or liabilities have been transferred to or from the Company or any of its Subsidiaries are there (including by contribution or distribution) as, and (ii) the Spin was not, in the case of either clause (i) or (ii), part of a plan a principal purpose of which was to avoid the purposes of Section 7874 of the Code.
(f) To the knowledge of the Company, as of the date of this Agreement, the Company is not in material breach of any facts representation, warranty, or circumstances, that could covenant under the Tax Matters Agreement.
(g) The consummation of the Transactions is not reasonably be expected to prevent cause the Company to be in material violation of its representations, warranties, and covenants in the Tax Matters Agreement (without regard to whether the Transactions from qualifying will cause (x) the Spin to fail to qualify for tax-free treatment under Section 355 or (y) the Intended Tax TreatmentCompany shares distributed in the Spin to not be treated as “qualified property” (for purposes of Section 355(c)(2) or Section 361(c)(2) of the Code) by reason of the application of Section 355(d) or Section 355(e) of the Code).
(h) No material closing agreements, private letter rulings, technical advice memoranda or similar written agreements or rulings have been entered into with or issued by any Taxing Authority within the three (3)-year period immediately preceding the date of this Agreement with respect to the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (IAA, Inc.), Merger Agreement (Ritchie Bros Auctioneers Inc)
Taxes. (a) All The Company and each of its Subsidiaries have (i) timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (i) or clause (ii) hereof, with respect to matters contested in good faith or for which adequate reserves have been paidestablished in accordance with GAAP.
(b) The Company and each As of its Subsidiaries have withheld from amounts owing to any employeethe date of this Agreement, creditor there are no pending or ongoing audits, examinations, investigations or other Person all material Taxes required Proceedings by applicable Law to be withheld, paid over to the proper any Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements respect of Taxes of or with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(dc) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against All Taxes that the Company or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other Third Parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fd) Neither the Company nor any of its Subsidiaries has made ever been a request for member of a consolidated, combined or entered into unitary Tax group (other than such a closing agreement, private letter ruling, advance tax ruling group the common parent of which is the Company or similar agreement with any Governmental Authority with respect to Taxes. of its Subsidiaries).
(e) Neither the Company nor any of its Subsidiaries has made is a change party to or is bound by any Tax sharing, Tax allocation or Tax indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries and certain Portfolio Companies or customary commercial Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not be terminated on or before the Closing Date without any method future liability to the Company or its Subsidiaries.
(f) There are no Liens for Taxes on any of accounting with respect to the assets of the Company or any Taxesof its Subsidiaries other than Permitted Liens.
(g) Neither the Company nor any of its Subsidiaries is has participated in or been a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between a transaction that, as of the Company date of this Agreement, constitutes a “listed transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)applicable Treasury Regulations thereunder.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes has taken any action or knows of any other Person (other than fact that would reasonably be expected to prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Mergers from qualifying for the Intended Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesTreatment.
(i) Within The Company has made a valid election under Part I of Subchapter M of Subtitle A, Chapter 1, of the past three Code to be taxed as a “regulated investment company” (3a “RIC”). The Company has qualified as a RIC with respect to its first taxable year ending on December 31, 2015, and with respect to each taxable year thereafter (including its taxable year ending on the Effective Time). No challenge to Company’s status as a RIC is pending or has been threatened in writing.
(j) yearsEach Subsidiary of the Company that is a partnership, no written joint venture, or limited liability company has been since its formation treated for United States federal income Tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation.
(k) No claim has been made in writing by any Governmental a Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it the Company or any such Subsidiary is or may be subject to taxation in by that jurisdiction, and which, if upheld, would reasonably result in a material Tax liability.
(jl) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within any liability for the meaning Taxes of another Person other than the Company and its Subsidiaries under Treasury Regulation 1.6011Section 1.1502-4(b)(26 (or any similar provision of state, local or foreign Law), as a transferee, successor or payable pursuant to a contractual obligation.
(km) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated past five years (or otherwise as an part of a “investment companyplan (or series of related transactions)” within the meaning of Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated by this Agreement and Code of which the Transactions contemplated herebyMergers are also a part), neither the Company nor any of its Subsidiaries has taken any action been a “distributing corporation” or agreed a “controlled corporation” in a distribution intended to take any action, nor to the knowledge qualify under Section 355(a) of the Code.
(n) Neither the Company or nor any of its Subsidiaries are there any facts has requested a private letter ruling from the IRS or circumstances, that could reasonably be expected to prevent the Transactions comparable rulings from qualifying for the Intended Tax Treatmentother Taxing Authorities.
Appears in 2 contracts
Samples: Merger Agreement (Crescent Capital BDC, Inc.), Merger Agreement (Alcentra Capital Corp)
Taxes. Except as set forth in Section 2.21 of the Disclosure Schedule:
(a) All With respect to each of the Company and its Subsidiaries, (i) all material returns, statements, reports, estimates, declarations and forms with respect to Taxes (as defined in Section 4.6) (collectively, "Tax Returns Returns") required to be filed by on or before the Closing Date have been or will have been, timely filed in accordance with respect any applicable Laws, (ii) all Taxes due and payable pursuant to such Tax Returns (whether or not shown on such returns) have been or will be timely paid, and (iii) all Taxes for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable have been paid or accrued on the financial books and records of the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all Subsidiaries. All such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, . As of the Balance Sheet Date the Company and all its Subsidiaries had no material liability for Taxes due and payable (whether or not shown in excess of the accruals for Taxes reflected on any Tax Return) have been paidthe September 30 Balance Sheet.
(b) With respect to each of the Company and its Subsidiaries, (i) there is no action, suit, proceeding, audit, written claim, Lien (other than Liens for Taxes not yet due and payable or which are being contested in good faith), or assessment pending or proposed with respect to Taxes or with respect to any Tax Return, (ii) all material amounts required to be collected or withheld with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly and timely remitted, (iii) no extension of time within which to file any Tax Return has been requested which Tax Return has not since been filed, (iv) there are no material waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any Tax Return which remain in effect, (v) there are no tax rulings, requests for rulings, applications for change in accounting methods or closing agreements relating to the Company or any of its Subsidiaries which could reasonably be expected to affect its liability for Taxes for any period after the Closing Date, and (vi) none of the Seller, the Company or any of its Subsidiaries has agreed to, or is required to include in income, any adjustment pursuant to Section 481(a) or 482 of the Code (or similar provisions of other Law) (nor has any taxing authority proposed any such adjustment or change of accounting method).
(c) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeis a member of a U.S. consolidated return filing group of which Parent is the common parent. Since 1990, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither neither the Company nor any of its Subsidiaries has made been a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change member of any method of accounting with respect to any Taxes.
(g) other consolidated return group. Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into which will be in the ordinary course of business) not primarily related effect with respect to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionafter the Closing Date.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Stock Purchase Agreement (McLeodusa Inc), Stock Purchase Agreement (McLeodusa Inc)
Taxes. (a) Schedule 5.14(a) lists the valid classification of each of the Company and its Subsidiaries for U.S. federal income tax purposes since their respective dates of formation.
(b) All material federal, state, local and foreign income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)) have been timely filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, .
(c) The Company and its Subsidiaries have paid all material amounts of Taxes due and payable (whether or not shown on any Tax Return) that are due and payable by the Company and its Subsidiaries, except with respect to matters contested in good faith by appropriate proceedings and with respect to which adequate reserves have been paidmade in accordance with GAAP.
(bd) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeExcept for Permitted Liens, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There there are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(de) No claim, assessment, deficiency or proposed adjustment for any All material amount amounts of Tax has been asserted in writing or assessed Taxes required to be withheld by any Governmental Authority against the Company or any of and its Subsidiaries that remains unresolved or unpaidhave been withheld and, to the extent required, have been paid over to the appropriate Governmental Authority.
(ef) There is no material Tax audit or other examination None of the Company or any of its Subsidiaries presently in progress with respect to has received from any material Taxes, nor has the Company or Governmental Authority any of its Subsidiaries been notified in writing written notice of any request threatened, proposed, or threat assessed deficiency for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither , except for such deficiencies that have been satisfied by payment, settled or withdrawn. No audit or other proceeding by any Governmental Authority is in progress with respect to any Taxes due from the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with received written notice from any Governmental Authority with respect to Taxes. Neither that any such audit or proceeding is contemplated or pending.
(g) Within the past three (3) years, neither the Company nor any of its Subsidiaries has made received a change of any method of accounting with respect written claim to any Taxes.
(g) Neither pay Taxes or file Tax Returns from a Governmental Authority in a jurisdiction where the Company nor any of its Subsidiaries is a party to any or such Subsidiary has not paid Taxes or filed Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Returns, except for claims that have been finally resolved.
(h) Neither the Company nor any of its Subsidiaries (i) is liable has a request for Taxes a private letter ruling, a request for administrative relief, a request for technical advice or a request for a change of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision method of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by accounting pending with any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Authority. Neither the Company nor any of its Subsidiaries has participated extended the statute of limitations for assessment, collection or other imposition of any Tax (other than pursuant to an extension of time to file a Tax Return of not more than seven months obtained in a “listed transaction” within the meaning ordinary course of Treasury Regulation 1.6011-4(b)(2business), which extension is currently in effect.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Agreement and Plan of Merger (Tuatara Capital Acquisition Corp)
Taxes. (a) All Each of the Company and its Covered Subsidiaries has timely filed, or has timely filed for extensions to file, all income and other material Federal, state, local and foreign Tax Returns required to be filed by or it and there are in effect no waivers of applicable statutes of limitations with respect to the Company or Taxes for any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such year. Such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects and each of the Company and its Covered Subsidiaries have paid and discharged all income and other material Taxes due and payable required to be paid by it (whether or not shown on any Tax Return) ). There have been paid.
(b) The no examinations, audits or Proceedings of any income Tax Returns or other material Tax Returns of the Company or its Covered Subsidiaries by any Governmental Authority and no such examinations, audits or Proceedings are pending or being threatened in writing. Each of the Company and each of its Covered Subsidiaries have withheld from amounts owing has withheld, collected and paid over to any employee, creditor the appropriate Governmental Authorities or other Person are properly holding for such payment all material Taxes required by applicable Law to be withheldwithheld or collected. There are no liens for Taxes on the Company, paid over its Covered Subsidiaries or any of the Company’s or its Covered Subsidiaries’ assets or properties (other than statutory liens for Taxes that are not yet due and payable) and no Governmental Authority has threatened in writing to impose such a lien on the proper Company, its Covered Subsidiaries or any of the Company’s or its Covered Subsidiaries’ assets or properties. None of the Company or its Covered Subsidiaries has received a written claim from any Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority jurisdiction where the Company or any of its Subsidiaries a Covered Subsidiary, as applicable, does not file Tax Returns of a particular type that it the Company or a Covered Subsidiary, as applicable, is or may be subject to taxation of such type by, or required to file any Tax Return of such type or have any Tax Return of such type filed with respect to it, in that jurisdiction.
(j) Neither , which claim has not been settled or resolved. None of the Company nor or its Covered Subsidiaries is or has been a part to any of its Subsidiaries has participated in a “listed transaction,” within as defined in Section 6707A(c)(2) of the meaning of Code and Treasury Regulation Section 1.6011-4(b)(24(b).
(kb) The Company has not been, is not, and immediately prior Notwithstanding any other provision of this Agreement to the Share Exchange Closing will not becontrary, treated as an “investment company” within the meaning of representations and warranties set forth in this Section 368(a)(2)(F) of 3.8 and Section 3.2(a)(iii), Section 3.12(h), Section 3.14, Section 3.19, Section 3.22 and Section 3.28 shall constitute the Code.
(l) Except as contemplated sole and exclusive representations and warranties made by this Agreement and the Transactions contemplated hereby, neither the Company nor with respect to any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended and all Tax Treatmentmatters.
Appears in 2 contracts
Samples: Class E Preferred Unit and Class F Preferred Unit Purchase Agreement (Walgreens Boots Alliance, Inc.), Purchase Agreement (Walgreens Boots Alliance, Inc.)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed all U.S. federal income Tax Returns and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)it, all and such Tax Returns (taking into account are, in all amendments thereto) are material respects, true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidaccordance with applicable Law.
(b) The Each of the Company and each of its Subsidiaries have has (i) timely paid all material Taxes it is required to pay, and (ii) timely withheld from (and timely paid over any withheld amounts owing to any employee, creditor or other Person the appropriate Governmental Authority) all material Taxes required by applicable Law to be withheldwithheld by it, paid over to or, in each case, has reserved for such amounts on the proper Governmental Authority Balance Sheet in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects accordance with all applicable withholding and related reporting requirements with respect to such TaxesGAAP.
(c) There are no Liens Neither the Company nor any of its Subsidiaries had any material liabilities for unpaid Taxes as of the date of the Balance Sheet that had not been accrued or reserved on such Balance Sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Balance Sheet other than in the ordinary course of business consistent with past practice or in connection with the transactions contemplated by this Agreement.
(d) Neither the Company nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax (other than Permitted Liens) upon the property automatic extensions for which no Governmental Authority approval is required), and no power of attorney with respect to any material Taxes has been executed or assets filed with any Governmental Authority by or on behalf of the Company or any of its Subsidiaries.
(de) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an proposed audit or other examination. No material adjustment relating to any Tax Return filed by the Company has been proposed by any Governmental Authority which has not been fully paid, otherwise resolved or adequately reserved in the consolidated financial statements of the Company filed or furnished with the SEC Reports. No written claim has ever been made by any Governmental Authority in a jurisdiction where the Company and there its Subsidiaries do not file Tax Returns that any of them is or may be subject to taxation by that jurisdiction.
(f) There are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes Liens on the Assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Encumbrances.
(g) Neither the Company nor any of its Subsidiaries is has (a) ever been a member of an affiliated, consolidated, combined, aggregate or unitary group (including within the meaning of Code §1504(a)) filing a consolidated Tax Return (other than a group the common parent of which was the Company), (b) ever been a party to any Tax indemnification or Tax sharing or similar Tax allocation agreement (other than any such agreement solely between the only parties to which are the Company and its existing one or more Subsidiaries and customary commercial Contracts of the Company (or Contracts entered into in commercial agreements, the ordinary course primary purpose of business) which is not primarily related to Taxes).
, (hc) Neither any liability for the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person person (other than the Company and its Subsidiariesor a Subsidiary of the Company) under Treasury Regulation Section Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign applicable Law), or as a result of filing Tax Law Returns on a consolidated, combined, or unitary basis with such person or (d) as a transferee or successor successor, by contract, by operation of applicable Law or by Contract otherwise (other than customary commercial Contracts including, without limitation, liability for social security payments for subcontractors).
(or Contracts entered into in the ordinary course of businessh) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the The Company or any and each of its SubsidiariesSubsidiaries is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order.
(i) Within the past three (3) years, There is no written claim has been made by any Governmental Authority where Contract to which the Company or any of its Subsidiaries does is a party, which, individually or collectively, could, and neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or in conjunction with any other event) will, give rise to the payment of any amount that would not file Tax Returns that it be deductible pursuant to Section 162(m) or Section 280G of the Code and no director, officer, employee or independent contractor of the Company is entitled to receive any gross-up or may be subject to taxation in that jurisdictionadditional payment by reason of the tax required by Section 4999 of the Code being imposed on such person.
(j) Each Employee Plan and contract, agreement or arrangement between the Company or any ERISA Affiliate and any Employee, in each case, that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) subject to Section 409A of the Code (or any state law equivalent) and the regulations and guidance thereunder (“Section 409A”) has been at all times since January 1, 2005 (of, if later, the date it became effective) in operational compliance with Section 409A and at all times since January 1, 2009 (of, if later, the date it became effective) in documentary compliance with Section 409A. There is no contract, agreement, plan or arrangement to which the Company or any of its Subsidiaries is a party covering any Employee of the Company, which individually or collectively could require the Company or any of its Affiliates to pay a Tax gross up payment to, or otherwise indemnify or reimburse, any Employee for Tax related payments under Section 409A. There is no contract, agreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party, which, individually or collectively, could reasonably be expected to give rise to a Parent, Company or Company Subsidiary Tax under Section 409A of the Code or that could reasonably be expected to give rise to an Employee Tax and/or Company or Company Subsidiary reporting obligations under Section 409A of the Code.
(k) Since January 1, 2012, neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(l) Neither the Company nor any of its Subsidiaries has participated engaged in a “reportable transaction under Treas. Reg. § 1.6011-4(b), including any transaction that is the same as or substantially similar to one of the types of transactions that the IRS has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction” within the meaning of Treasury Regulation , as set forth in Treas. Reg. § 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Sandisk Corp), Merger Agreement (Fusion-Io, Inc.)
Taxes. (a) All The Company has (i) duly and timely filed (or caused to be duly and timely filed) with the appropriate Taxing Authority all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed it (taking into account any applicable extensions), extensions or waivers) and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respectsrespects as of their respective dates, (ii) duly and all material Taxes due timely paid (or caused to be duly and payable (whether or not shown on any Tax Returntimely paid) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person in full all material Taxes required by applicable Law to be withheldpaid by it, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and (iii) complied in all material respects with all applicable withholding and related reporting requirements Laws with respect to the withholding and payment over of Taxes and has duly and timely withheld and paid over to the respective proper Taxing Authorities all material amounts required to be so withheld and paid over, except in each case for Taxes or Tax Returns with respect to which the Company has established or reflected an adequate reserve under GAAP or for Taxes or Tax Returns that are being defended in good faith through appropriate proceedings.
(b) Within the preceding three (3) years, no claim or nexus inquiry has been made in writing by a Taxing Authority in a jurisdiction where the Company does not file Tax Returns claiming that the Company is subject to taxation by, or is required to file any Tax Return in, such Taxesjurisdiction.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company or any of its Subsidiaries.
(d) No claimdate hereof, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes no material deficiency, claim, audit, suit or proceeding outstanding or threatened in writing against or with respect to the Company in respect of any other Person Taxes or Tax Returns, (other than ii) are no material outstanding “closing agreements” (as described in Section 7121 of the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 Code (or any corresponding or similar provision of state, local or foreign Tax Law Law)), ruling requests or requests to consent to change a method of accounting with respect to the Taxes of the Company, and (iii) are no material agreements, waivers or similar consents extending the statutory period of limitation applicable to any Taxes of the Company for any period.
(d) There are no Encumbrances for Taxes upon any property or assets of the Company, except for Permitted Encumbrances.
(e) The Company is not the subject of, nor is it bound by, any material private letter ruling, technical advice memorandum or similar ruling, memorandum, or agreement with any Taxing Authority.
(f) The Company is not a party to, nor is it bound by, any material Tax indemnification, allocation or sharing agreement that will be in existence after the Final Closing, other than any customary Tax indemnity, allocation or sharing in any agreement whose primary subject is not Taxes.
(g) The Company has never been a member of any affiliated group, within the meaning of Section 1504(a) of the Code, or a member of a combined, consolidated, or unitary group for state, local or foreign Tax purposes (in each case other than any such group of which the Company is the parent) nor has the Company had any liability for material Taxes of any other Person as a result of having been a member of any affiliated, combined, consolidated, or unitary group for U.S. federal, state, local or foreign Tax purposes (including Treasury Regulations Section 1.1502-6) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(ih) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company has not distributed the stock of another Person in a transaction that was purported or intended to be governed in whole or in part by Section 355(a) of the Code.
(i) The Company will not be required to include any material item of its Subsidiaries does not file Tax Returns that it is income in, or may be subject exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Final Closing Date, as a result of any (i) change in method of accounting for a taxable period ending on or prior to taxation in that jurisdictionthe Final Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Final Closing Date, (iii) prepaid amount received on or prior to the Final Closing Date, or (iv) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code.
(j) Neither the The Company nor has not been a party to any of its Subsidiaries has participated in a “listed transaction” within the meaning of as defined in Treasury Regulation Regulations Section 1.6011-4(b)(2).
(k) The Notwithstanding any other provision of this Agreement, it is agreed and understood that no representation or warranty is made by the Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstancesthe Transaction Agreements in respect of Tax matters, that could reasonably be expected to prevent other than the Transactions from qualifying for the Intended Tax Treatmentrepresentations in this Section 4.16.
Appears in 2 contracts
Samples: Stock Purchase Agreement (AtlasClear Holdings, Inc.), Stock Purchase Agreement (Calculator New Pubco, Inc.)
Taxes. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect:
(a) All material Tax Returns required to be filed (taking into account extension of time for filing) by or with respect to the Company Parent or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), with the appropriate Taxing Authority and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respectscomplete, and all material Taxes that are due and payable by Parent or any of its Subsidiaries (whether including Taxes required to be withheld from payments to employees, creditors, shareholders or not shown on any Tax Returnother Persons) have been paidpaid in full, in each case, except to the extent adequate reserves have been established in accordance with GAAP in the Parent SEC Documents.
(b) The Company and each There is not in force any waiver or agreement for any extension of its Subsidiaries have withheld from amounts owing to time for the assessment or payment of any employee, creditor or other Person all material Taxes required Tax by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Parent or any of its Subsidiaries.
(dc) No There is no outstanding claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Parent or any of its Subsidiaries for any Taxes that remains unresolved has been asserted or unpaidthreatened in writing by any Governmental Entity except for any such claim, assessment or deficiency for which adequate reserves have been established in accordance with GAAP in the Parent SEC Documents. There are no disputes, audits, examinations, investigations or proceedings pending or threatened in writing in respect of any Taxes or Tax Returns of Parent or any of its Subsidiaries, and neither Parent nor any of its Subsidiaries is a party to any litigation or administrative proceeding relating to Taxes.
(d) There are no Liens for Taxes upon any property or assets of Parent or any of its Subsidiaries except for statutory Liens for Taxes not yet due and payable.
(e) There is no material Tax audit or other examination of In the Company or last three (3) years, neither Parent nor any of its Subsidiaries presently has received a written claim by any Governmental Entity in progress with respect a jurisdiction where it does not file income or franchise Tax Returns that it is or may be subject to any material Taxes, nor has the Company income or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesfranchise taxation by that jurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company Parent nor any of its Subsidiaries is a party to any Tax indemnification allocation, sharing or indemnity contract or arrangement (not including, for the avoidance of doubt (i) any contract or arrangement solely among Parent and/or any of its Subsidiaries, or (ii) any customary Tax sharing or similar Tax indemnification provisions contained in any agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxesbusiness (e.g., leases, credit agreements or other commercial agreements).
(h) ). Neither the Company Parent nor any of its Subsidiaries has (i) been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is liable or was Parent or any of its Subsidiaries) or (ii) any material liability for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jg) Neither the Company Parent nor any of its Subsidiaries has participated requested, has received or is subject to any written ruling of a Taxing Authority that will be binding on it for any taxable period beginning on or after the Closing Date or has entered into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law).
(h) Neither Parent nor any of its Subsidiaries has participated, or is currently participating, in a “listed transaction” as defined in Treasury Regulations § 1.6011-4(b)(2) (or any similar provision of state, local or foreign Law).
(i) Neither Parent nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355(a) of the Code in the two (2) years prior to the date of this Agreement.
(j) After reasonable diligence, neither Parent nor any of its Subsidiaries is aware of the existence of any fact, or has taken or agreed to take any action, that could reasonably be expected to prevent the Integrated Mergers, taken together, from qualifying as a “reorganization” within the meaning of Treasury Regulation 1.6011-4(b)(2)Section 368(a) of the Code.
(k) The Company has not been, Each of EQT GP and EQT MLP is notproperly classified as a partnership for U.S. federal income tax purposes, and immediately prior to not as an association or a publicly traded partnership taxable as a corporation under Section 7704 of the Share Exchange Closing will not beCode, and has properly been treated as such at all times since its formation. At least 90% of the gross income of each of EQT GP and EQT MLP for each taxable year since its formation has been “qualifying income” within the meaning of Section 7704(d) of the Code.
(l) Parent is not an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (EQT Corp), Merger Agreement (Rice Energy Operating LLC)
Taxes. (a) All material Tax Returns required by Law to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and . The Financial Statements accrue in accordance with GAAP all material liabilities for Taxes due and payable (whether or not shown on any Tax Return) have been paidwith respect to all periods through the date thereof.
(b) The All material amounts of Taxes due and owing by the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationpaid, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of since the Company or any of its Subsidiaries.
(f) Neither Latest Balance Sheet Date neither the Company nor any of its Subsidiaries has made incurred any material Tax liability outside the ordinary course of business.
(c) Each of the Company and its Subsidiaries has (i) withheld all material amounts required to have been withheld by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) remitted, or will remit on a request for or entered into a closing agreementtimely basis, private letter ruling, advance tax ruling or similar agreement such amounts to the appropriate Governmental Authority; and (iii) complied in all material respects with any Governmental Authority applicable Law with respect to Tax withholding.
(d) Neither the Company nor its Subsidiaries is engaged in any audit or other administrative proceeding with a taxing authority or any judicial proceeding with respect to material Taxes. Neither the Company nor its Subsidiaries has received any written notice from a taxing authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved, and to the knowledge of the Company, no such claims have been threatened.
(e) Within the last six (6) years, no written claim has been made, and to the knowledge of the Company, no oral claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries has made does not file a change Tax Return that such entity is or may be subject to Taxes by that jurisdiction in respect of any method Taxes that would be the subject of accounting with respect such Tax Return.
(f) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any Taxesclaim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or its Subsidiaries and no written request for any such waiver or extension is currently pending.
(g) Neither the Company nor any of its Subsidiaries is has requested or entered into a closing agreement, private letter ruling, technical advice memorandum, advance pricing agreement or similar agreement with any taxing authority that could reasonably be expected to affect the Taxes of the Company or any of its Subsidiaries after the Closing Date. Neither the Company nor any of its Subsidiaries will be subject to any recapture, clawback, termination or similar adverse consequence with respect to any Tax incentive, holiday, credits or other Tax reduction, deferral or abatement arrangement (excluding, for the avoidance of doubt, any net operating loss) as a result of the Merger.
(h) Neither the Company nor its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the prior two (2) years.
(i) Neither the Company nor its Subsidiaries has been a party to any Tax indemnification or Tax sharing or similar Tax agreement “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
(other than any such agreement solely between j) Neither the Company and nor its existing Subsidiaries and customary commercial Contracts 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 Contracts entered into portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing or use of an improper method of accounting prior to the Closing; (ii) any written agreement with a Governmental Authority executed prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing; or (iv) prepaid amount received prior to the Closing outside of the ordinary course of business) not primarily related to Taxes).
(hk) There are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(l) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or and is the Company or any of its Subsidiaries or (ii) except pursuant to an agreement entered into in the ordinary course of business the principal purpose of which does not relate to Taxes (each, a “Commercial Contract”), has any liability for the Taxes of any Person (other than the Company or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or as a transferee or successor, by Contract or otherwise.
(im) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file is a party to, or bound by, or has any obligation to any Governmental Authority or other Person under any Tax Returns that it allocation, Tax sharing, or Tax indemnification agreements, other than pursuant to a Commercial Contract. Neither the Company nor its Subsidiaries has granted a power of attorney which is currently in force with respect to any material Taxes or may be subject to taxation in that jurisdictionmaterial Tax Returns.
(jn) The Company is not and has not been during the last five (5) years a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(o) Any entity classification elections made on Form 8832 (Entity Classification Election) with respect to the Company or its Subsidiaries are set forth on Schedule 4.16(o).
(p) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has taken or agreed to take any action not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and and/or any related ancillary documents that could reasonably be expected to prevent the Transactions contemplated hereby, neither Merger from qualifying for the Intended Tax Treatment. Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company any fact or any of its Subsidiaries are there any facts or circumstances, circumstance that could reasonably be expected to prevent the Transactions Merger from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Seaport Global Acquisition II Corp.), Merger Agreement (American Battery Materials, Inc.)
Taxes. Except as set forth in Section 7.16 of the Purchaser Disclosure Schedule:
(a) All material Tax Returns required to be filed by or with respect to the Company Purchaser or any of its Subsidiaries with any Governmental Entity have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct accurate and complete in all material respects, and all . All material Taxes shown as due on such Tax Returns have been paid in full and payable any other material Taxes that Purchaser is otherwise obligated to pay (whether or not shown such Taxes have been reported on any Tax ReturnReturns) have been paidpaid in full.
(b) The Company and each There is no audit, examination or other administrative or court proceeding involving any material Tax of Purchaser or any of its Subsidiaries have withheld from amounts owing to any employeethat is currently in progress or threatened in writing by a Governmental Entity, creditor or other Person all material Taxes required which written threat has been received by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Purchaser or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fc) Neither the Company Purchaser nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with received from any Governmental Authority with respect Entity in a jurisdiction where Purchaser or its Subsidiary has not filed any Tax Returns any material written claim that Purchaser or such Subsidiary is subject to Taxes. Neither material taxation by that jurisdiction, which claim has not been fully resolved.
(d) There are no Encumbrances for Taxes upon any of the Company nor assets of Purchaser or any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesSubsidiaries, other than Permitted Encumbrances.
(ge) Neither the Company Purchaser nor any of its Subsidiaries is a party to to, is bound by or has any obligation under any Tax indemnification allocation or Tax sharing or similar Tax agreement (agreement, other than (i) any such agreement solely between the Company among Purchaser and its existing Subsidiaries and customary or (ii) any commercial Contracts agreement the primary subject matter of which is not Taxes.
(f) None of Purchaser or Contracts entered into any of its Subsidiaries has engaged in any “listed transaction” within the ordinary course meaning of businessTreasury Regulation Section 1.6011-4(b).
(g) Neither Purchaser nor any of its Subsidiaries has waived any statutes of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency, in each case that has not primarily related to Taxes)expired.
(h) Purchaser and its Subsidiaries have withheld and paid to the appropriate Governmental Entity all material amounts of Taxes required to have been withheld and paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor, shareholder or other third party.
(i) Neither the Company Purchaser nor any of its Subsidiaries have been a member of an Affiliated Group filing a consolidated, combined or unitary United States federal, state, local or foreign income Tax Return, other than an Affiliated Group consisting only of Purchaser and its Subsidiaries.
(ij) is liable Neither Purchaser nor any of its Subsidiaries has any material liability for the Taxes of any other Person (person, other than the Company Purchaser and its Subsidiaries) , under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course otherwise as a matter of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesLaw.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company Purchaser nor any of its Subsidiaries has, within the two years ending on the date of this Agreement, distributed stock of another Person, or has participated had its stock distributed by another Person, in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior transaction that was purported or intended to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of be governed in whole or in part by Section 368(a)(2)(F) 355 or Section 361 of the Code.
(l) Except as contemplated by Other than the representations and warranties set forth in Section 7.08, this Agreement Section 7.16 contains the exclusive representations and the Transactions contemplated hereby, neither the Company nor any warranties of its Subsidiaries has taken any action or agreed Purchaser with respect to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentmatters.
Appears in 2 contracts
Samples: Transaction Agreement (Replay Acquisition LLC), Transaction Agreement (Replay Acquisition Corp.)
Taxes. (a) All The Company and each of its Subsidiaries has timely filed all income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)them, all and each such Tax Returns Return (taking into account all amendments thereto) are is true, correct and complete in all material respects, respects (insofar as it reflects the ultimate liability for Taxes due) and has been prepared in substantial compliance with all material Taxes due and payable (whether or not shown on any Tax Return) have been paidApplicable Laws.
(b) The Company and each of its Subsidiaries has (i) paid all material amounts of Taxes that have become due and payable by each of them, regardless of whether such Taxes are required to be reflected on any Tax Return and (ii) withheld from and paid all material Taxes required to have been withheld and paid by each of them in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, stockholder, or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird party.
(c) There are is no Liens (i) claim for material amounts of Taxes being asserted or assessed against the Company or any Subsidiary by any Governmental Authority that has not been fully paid or otherwise fully resolved, (ii) to the knowledge of the Company, material audit of any Tax Return of the Company or any Subsidiary pending or being conducted by a Governmental Authority, (iii) extension of any statute of limitations on the assessment of any material amount of Taxes granted by the Company or any Subsidiary currently in effect (other than Permitted Lienspursuant to extensions of time to file Tax Returns automatically granted), (iv) upon agreement with a Governmental Authority to any extension of time for filing any material Tax Return which has not been filed (other than extensions of time for filing automatically granted), or (v) Lien for Taxes on any of the property or assets of the Company or any of its Subsidiaries.
(d) Subsidiaries other than any Permitted Liens. No claim, assessment, deficiency or proposed adjustment for any material amount of Tax written claim has been asserted in writing received on or assessed after January 1, 2019 by any Governmental Authority against the Company or any of its Subsidiaries from any Governmental Authority in a jurisdiction that remains unresolved has not been resolved where neither the Company nor any Subsidiary files Tax Returns asserting that the Company or unpaidany Subsidiary is required to file a material Tax Return with that jurisdiction or that the Company or any Subsidiary is liable for any material amount of Tax or is required to collect and withhold any material amount of Tax.
(d) Neither the Company nor any Subsidiary (i) is a party to or bound by any material Tax sharing, Tax indemnity, or Tax allocation agreement or (ii) has any liability or potential liability to another party under any such agreement, in each case other than (y) agreements entered into in the ordinary course of business and the primary purpose of each of which does not relate to Taxes, and (z) agreements the only parties of which are the Company and/or one or more of its Subsidiaries.
(e) There Neither the Company nor any Subsidiary has participated in, or is no material Tax audit or other examination currently participating in, any “listed transaction” within the meaning of Section 6707A(c) of the Company Code or any Treasury Regulation Section 1.6011-4(b), or under a corresponding or similar provision of its Subsidiaries presently state, local, or foreign law (other than a “loss transaction” as described in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTreasury Regulation Section 1.6011-4(b)(5)).
(f) Neither the Company nor any Subsidiary or any predecessor of its Subsidiaries the Company or any Subsidiary (i) has made since December 31, 2017, been a request member of a consolidated, combined, unitary or aggregate group of which the Company or any predecessor of the Company (or any Subsidiary of the Company) was not the ultimate parent or (ii) has, to the knowledge of the Company, any actual unpaid liability for the Taxes of any person (other than the Company or any Subsidiary) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign law) as a transferee or successor, or by contract, in each case other than pursuant to or arising from (y) agreements entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect in the ordinary course of business and the primary purpose of each of which does not relate to Taxes. Neither Taxes and (z) the Company nor or any Subsidiary being a member of a consolidated, combined, unitary and/or aggregate group prior to December 31, 2017 that included Intel Corporation and its Subsidiaries has made a change of any method of accounting with respect to any Taxesaffiliates.
(g) Neither the Company nor any of its Subsidiaries (i) is a party to or bound by any “closing agreement” described in Section 7121 of the Code (or any corresponding provision of Applicable Law) or other written agreement with a Taxing Authority regarding Taxes or Tax matters or (ii) has requested or received any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between ruling, in either case that would have continuing effect after the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Closing Date.
(h) 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) beginning after the Closing Date as a result of any: (i) is liable change in method of accounting or use of an improper method of accounting for Taxes a taxable period ending on or prior to the Closing Date pursuant to Section 481 of any other Person the Code (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any corresponding or similar provision of stateApplicable Law), local in each case prior to Closing; (ii) installment sale or foreign Tax Law open transaction disposition made or as a transferee or successor or by Contract (prepaid amount received prior to the Closing, in each case, other than customary commercial Contracts (or Contracts entered into amounts received in the ordinary course of business; (iii) not primarily related intercompany transaction entered into prior to Taxesthe Closing or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of Applicable Law) relating to transactions occurring prior to the Closing; (iv) gain recognition agreement under Section 367 of the Code (or any corresponding provision of Applicable Law); or (iiv) has ever been a member election under Section 965(h) of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Code (or any corresponding provision of its SubsidiariesApplicable Law) made in a period or portion thereof ending on or prior to the Closing Date.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries (i) has participated ever had a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has had an office or fixed place of business in a country outside of the jurisdiction of its incorporation or organization, or (ii) is resident for Tax purposes in a country outside of its jurisdiction of incorporation or organization.
(j) The Company and its Subsidiaries have complied in all material respects with all Applicable Laws related to transfer pricing.
(k) Neither the Company nor any Subsidiary has constituted either a “listed transactiondistributing corporation” or a “controlled corporation” in a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of the Closing.
(l) Either (i) 50% or more of the value of the gross assets of OpCo LLC does not consist of U.S. real property interests within the meaning of Section 897 of the Code and the Treasury Regulations thereunder or (ii) 90% or more of the value of the gross assets of OpCo LLC does not consist of U.S. real property interests plus cash or cash equivalents, within the meaning of Treasury Regulation 1.6011Regulations Section 1.1445-4(b)(211T(d)(2).
(km) The Company Each of OpCo LLC and McAfee Finance 2, LLC is classified as a partnership for U.S. federal income tax purposes and has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of in effect a valid election under Section 368(a)(2)(F) 754 of the Code.
(ln) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor Notwithstanding anything herein to the knowledge contrary, the representations and warranties contained in this Section 4.16 and, to the extent expressly referring to Code sections, Section 4.17 are the sole and exclusive representations of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected with respect to prevent the Transactions from qualifying for the Intended Taxes and Tax Treatmentmatters.
Appears in 2 contracts
Samples: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Taxes. (a) All material Taxes due and payable by the Companies have been paid in full. The liability for Taxes of the Companies reflected in the Financial Statements will be sufficient in all respects to provide for all interest, penalties, assessments or deficiencies, if any, which, as of the date of such Financial Statements, were due and unpaid and the appropriate accrual for other unpaid Taxes not yet due. The Companies have timely filed or had timely filed on their behalf all Tax Returns which they are required to be have filed by or with respect to the Company or any of its Subsidiaries proper extensions have been timely filed (taking into account any applicable extensions), all therefore and such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, provided that this representation and all material warranty shall not be construed as a representation or warranty that any Tax attribute or return position reflected on a Tax Return may be relied upon by any Buyer Indemnified Party with respect to the determination of any liability for Taxes due and payable (whether or not shown to be reflected on any Tax Return) Return filed after the Closing Date. Any deficiencies asserted in writing with respect to any Tax Returns as a result of any audit by a Governmental Body have been paid, settled or are being contested or appealed, and except as provided on Schedule 3.13, none of the Companies has received any written notice of, nor do the Sellers know of, any present disputes as to Taxes payable by any of the Companies. There are no unexpired waivers by any of the Companies of any statute of limitations with respect to any Taxes, and none of the Companies is a party to any action or proceedings by any Governmental Body for the collection or assessment of Taxes. The Companies have complied with all Requirements of Laws relating to the payment and withholding of Taxes (including, without limitation, withholding of payroll and employment Taxes and Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any foreign laws) and has, within the time and manner prescribed by applicable Requirements of Laws, withheld and paid over to the proper governmental authorities all amounts required to be withheld and paid. There are no Encumbrances for Taxes upon the assets or properties of the Companies except for statutory Encumbrances for Taxes not yet due or payable or for Taxes being contested in good faith through appropriate proceedings (which proceedings are listed on Schedule 3.13(a)). None of the Companies has received any written notice of any Tax rulings, requests for rulings, or closing agreements relating to any of the Companies which could materially affect any of the Companies’ liability for Taxes for any period after the Closing Date. None of the Companies will be required to take into income for any period on or after the Closing Date any adjustment under Section 481 of the Code (or any corresponding provision of state or local Tax law) as a result of any change of accounting method for a tax period beginning prior to the Closing Date or required by virtue of the transactions contemplated by this Agreement.
(b) Each of the Companies is not, nor has it been since the later of (i) March 12, 1999 or (ii) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, a member of or included in any affiliated, consolidated, combined, or unitary group for purposes of filing Tax Returns or paying Taxes at any time other than with the Company. The Company Companies do not have any liability for Taxes of any Person under Section 1.1502-6 of the U.S. income tax regulations or as a transferee of such Person or under any other provision of law, and each the Companies are a party to or bound by or have any obligation under any Tax sharing or similar agreement or arrangement. Schedule 3.13 sets forth all countries, states, provinces, cities, and other jurisdictions in which any of its Subsidiaries have withheld the Companies (i) filed Tax Returns at any time during the period beginning from amounts owing the later of (A) March 12, 1999 or (B) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, and (ii) has received written notice during the period beginning from the later of (X) March 13, 1999 or (Y) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, that claims that any of the Companies is subject to any employee, creditor Tax. Parent is not a “foreign person” within the meaning of Section 1445 of the Code and no withholding Tax will be payable pursuant to Section 1445 or other Person all material Taxes required by applicable Law to be withheld, paid over to provision of the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) Code upon the property or assets consummation of the Company transactions contemplated hereby. The Companies have not participated in or any cooperated with an international boycott within the meaning of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination Section 999 of the Company or Code. Each of the Companies has not received any written notice of its Subsidiaries presently in progress any foreign income Tax rulings with respect to any of the Companies that are material Taxesto the continuing operations of the Company. As a result of compliance with this Agreement, nor has none of the Company Companies will be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G of the Code (or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar corresponding provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into law) without regard to whether such payment is to be made in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesfuture.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kc) The Company has not beenand except as set forth on Schedule 3.17, is notno Subsidiary (and any predecessor of any of the Companies, including any entity merged or liquidated into any of the Companies) has been a validly electing S corporation within the meanings of Sections 1361 and 1362 of the Code since the later of (i) March 12, 1999 or (ii) the date such Subsidiary was directly or indirectly, formed or acquired by the Company. None of the Companies will be an S corporation as of the Closing Date. With respect to the United States and all states which for any of the Companies are being treated as a partnership, all elections for such treatment required to have been made have been properly and validly made in the United States and each of such states, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codesuch Companies have maintained compliance at all times with all applicable qualifications and filing procedures for such treatment.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Global Imaging Systems Inc), Stock Purchase Agreement (Global Imaging Systems Inc)
Taxes. Except as set forth in Schedule 4.12 of the Company Disclosure Letter:
(a) All material Tax Returns required to be filed (taking into account extensions of time for filing) by the Company or any of its Subsidiaries have been filed and all such filed Tax Returns are complete and accurate in all material respects. All material Taxes that are due and payable by the Company or any of its Subsidiaries (other than Taxes being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in accordance with GAAP) have been paid in full. All material withholding Tax requirements imposed on or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete satisfied in all material respectsfull, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding information reporting (and related reporting requirements with respect to such Taxeswithholding) and record retention requirements.
(cb) There are no Liens is not in force any waiver or agreement for Taxes (other than Permitted Liens) upon any extension of time for the property assessment or assets payment of any material Tax by the Company or any of its Subsidiaries.
(dc) No There is no outstanding material claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved has been asserted in writing by any Governmental Entity. There are no proceedings pending or, to the knowledge of the Company, threatened regarding any material Taxes of the Company and its Subsidiaries or unpaidthe assets of the Company and its Subsidiaries.
(ed) There is no material Tax audit or other examination of Neither the Company or nor any of its Subsidiaries presently in progress with respect is a party to any material TaxesTax allocation, nor has sharing or indemnity contract or arrangement (not including, for the Company avoidance of doubt (i) an agreement or any arrangement solely among the members of its Subsidiaries been notified in writing a group the common parent of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of which is the Company or any of its Subsidiaries, or (ii) any Tax sharing or indemnification provisions contained in any agreement entered into in the ordinary course of business and not primarily relating to Tax). Neither the Company nor any of its Subsidiaries has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or foreign Law) or as a transferee or successor by contract or under applicable Law.
(e) Neither the Company nor any of its Subsidiaries has participated, or is currently participating, in a reportable transaction within the meaning of Section 6707A of the Code and Treasury Regulations § 1.6011-4(b) or a transaction that is substantially similar to a listed transaction as defined Section 6707A of the Code and Treasury Regulations § 1.6011-4(b)(2).
(f) Neither the Company nor any of its Subsidiaries has made constituted a request “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or entered into (ii) as part of a closing agreement, private letter ruling, advance tax ruling “plan” or similar agreement “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTransactions.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no No written claim has been made by any Governmental Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Returns Return that it is or may be subject to taxation any material Tax in that such jurisdiction, nor has any such assertion been proposed in writing or, to the knowledge of the Company, threatened.
(h) The Company has made available to Parent complete and correct copies of any private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes which has been requested or will remain in effect as of the Closing.
(i) There are no Encumbrances for material Taxes on any of the assets of the Company or any of its Subsidiaries, except for Permitted Encumbrances.
(j) Neither the Company nor any of its Subsidiaries has participated will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a “listed transaction” within result of any closing agreement under Section 7121 of the meaning Code (or any corresponding or similar provision of Treasury Regulation 1.6011-4(b)(2state, local or foreign Law), installment sale under Section 453 of the Code (or any corresponding or similar provision of state, local or foreign Law) or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority under Section 481 of the Code (or any corresponding or similar provision of state, local or foreign Law), any prepaid amount received on or prior to the Closing Date, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of Law with respect to Taxes), or any election pursuant to Section 108(i) of the Code (or any similar provision of Law) made with respect to any taxable period ending on or prior to the Closing Date.
(k) The Neither the Company has not been, nor any of its Subsidiaries is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companyU.S. shareholder” (within the meaning of Section 368(a)(2)(F951(b) of the Code) of any foreign corporation which may be required to include in income any amounts under Section 951(a) of the Code.
(l) Except Neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken or agreed to take any action, that would prevent the Merger from qualifying as contemplated by this Agreement a “reorganization” within the meaning of Section 368(a) of the Code.
(m) The Company is, and has been since formation, properly classified for United States federal income tax purposes as a corporation.
(n) No rulings, requests for rulings or closing agreements (as described in Section 7121 of the Transactions contemplated herebyCode or comparable provisions of state or local Tax laws) have been entered into with or issued by, neither or are pending with, any Taxing Authority with respect to Company or any of its Subsidiaries.
(o) Neither the Company nor any of its Subsidiaries has taken been required to disclose on its federal income Tax Returns any action or agreed position that could give rise to take any action, nor to a substantial understatement of federal income tax within the knowledge meaning of Section 6662 of the Code.
(p) The unpaid Taxes of the Company or any of and its Subsidiaries are there (i) did not, as of the Company’s Last Balance Sheet, materially exceed the current liability accruals for Taxes (excluding any facts or circumstances, that could reasonably be expected reserves for deferred Taxes established to prevent the Transactions from qualifying reflect timing differences between book and Tax income) set forth in such balance sheet and (ii) do not materially exceed such current liability accruals for Taxes (excluding reserves for deferred Taxes established to reflect timing differences between book and Tax income) as adjusted for the Intended passage of time through the Closing Date in accordance with the past custom and practice of the Company and Subsidiaries in filing their respective Tax TreatmentReturns.
Appears in 2 contracts
Samples: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) timely filed all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respectsrespects when filed and (ii) paid all Taxes shown to be due on such Tax Returns other than such Taxes as are being contested in good faith by the Company or its Subsidiaries. The accruals and reserves for Taxes reflected in each Company SEC Report is adequate to satisfy all Taxes accruable through the relevant date of such Company SEC Report (including any interest and penalties, and all material Taxes due and payable (whether or not shown on any Tax Returnif any, thereon) have been paidin accordance with GAAP.
(b) The There are no material ongoing federal, state, local or foreign audits or examinations of any Tax Return of the Company and each of or its Subsidiaries have withheld from amounts owing to Subsidiaries. No taxing authority has asserted in writing against the Company or any employee, creditor Subsidiary any deficiency or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such claim for any Taxes.
(c) There are no Liens for outstanding written requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets of material deficiencies against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is are no material Tax audit or other examination of liens for Taxes upon the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes assets of the Company or any of its Subsidiaries, except liens for Taxes not yet due and payable and liens for Taxes that are being contested in good faith.
(e) Neither the Company nor any Subsidiary is a party to any indemnification, allocation or sharing agreement with respect to Taxes.
(f) Neither the Company nor any Subsidiary has been the member of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxesfederal consolidated group in which Company was not the common parent. Neither the Company nor any Subsidiary (i) has any liability for Taxes or any other person under Section 1502-6 of its Subsidiaries the Treasury Regulations (or any comparable provision of state, local, foreign or other law) or as a transferee or successor by contract or (ii) has made ever been a change of any method of accounting with respect to any Taxespartner in an entity treated as a partnership for federal income tax purposes.
(g) Neither the Company nor any of its Subsidiaries Subsidiary will be required to recognize taxable income in a taxable period after the Effective Time that is a party attributable to any Tax indemnification transaction occurring in, or Tax sharing a change in tax accounting method made for, any taxable period ending on or similar Tax agreement (other than any before the date of the Effective Time that has or will result in a deferred reporting from such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (transaction or Contracts entered into from such change in the ordinary course of business) not primarily related to Taxes)accounting method.
(h) Neither the Company nor any of its Subsidiaries (i) Subsidiary has made during the Company’s current tax year through the date hereof or during the Company’s three preceding tax years or is liable for Taxes of obligated to make any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) payment that would not primarily related be deductible pursuant to TaxesSections 162(m) or (ii) has ever been a member 280G of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesCode.
(i) Within the past three (3) years, no written No claim has been made in writing by any Governmental Authority a taxing authority in a jurisdiction where the Company or any of its Subsidiaries Subsidiary does not file Tax Returns that it the Company or any Subsidiary is or may be subject to taxation in by that jurisdiction. The Company and each Subsidiary have delivered or made available or will make available to Parent true and complete copies of all Federal, state, foreign and other material Tax Returns filed by the Company and the Subsidiaries and written audit reports and written statements of deficiencies received by the Company or any Subsidiary with respect to the audit of any of their Tax Returns.
(j) Neither the Company nor any of its Subsidiaries Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation section 1.6011-4(b)(24(c)(3)(i)(A). Neither the Company nor any Subsidiary has been a “distributing corporation” or “controlled corporation” (within the meaning of Code section 355(c)(2)) with respect to a transaction described in Code section 355 within the five-year period ending as of the date of this Agreement.
(k) The Except as would not have a Company has not beenMaterial Adverse Effect, each Benefit Plan that is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companynonqualified deferred compensation plan,” within the meaning of Section 368(a)(2)(F) section 409A of the Code.
(l) , has been operated and administered since January 1, 2005 in good faith compliance with section 409A of the Code , to the extent such Code section is applicable to such Benefit Plan. Except as contemplated by this Agreement and would not have a Company Material Adverse Effect, no such Benefit Plan has been “materially modified” (within the Transactions contemplated herebymeaning of IRS Notice 2005-1 or Proposed Treasury Regulation section 1.409A- 6(a)(4)) at any time after October 3, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment2004.
Appears in 2 contracts
Samples: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Taxes. (a) All material Tax Returns required to be filed (taking into account extensions of time for filing) by the Company or any of its Subsidiaries have been filed with the appropriate Taxing Authority, and all such filed Tax Returns are complete and accurate in all material respects. All material Taxes that are due and payable by the Company or any of its Subsidiaries (other than Taxes being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in accordance with GAAP in the financial statements included in the Company SEC Documents) have been paid in full. All material withholding Tax requirements imposed on or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete satisfied in all material respectsfull, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding information reporting (and related reporting requirements with respect to such Taxeswithholding) and record retention requirements.
(cb) There are no Liens is not in force any waiver or agreement for Taxes (other than Permitted Liens) upon any extension of time for the property assessment or assets payment of any material Tax by the Company or any of its Subsidiaries.
(dc) No There is no outstanding material claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved has been asserted or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified threatened in writing of by any request or threat for such an audit or other examination, and there Governmental Entity. There are no waiversdisputes, extensions audits, examinations, investigations or written requests for any waivers Proceedings pending or extensions of any statute of limitations currently threatened in effect with respect to writing regarding any material Taxes of the Company or any of its Subsidiaries or the assets of the Company and its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries is a party to any material Tax allocation, sharing or indemnity contract or arrangement (not including, for the avoidance of doubt (i) an agreement or arrangement solely between or among the Company and/or any of its Subsidiaries, or (ii) any customary Tax sharing or indemnification provisions contained in any commercial agreement entered into in the Ordinary Course and not primarily relating to Tax (e.g., leases, credit agreements or other commercial agreements)). Neither the Company nor any of its Subsidiaries has (x) been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is or was the Company or any of its Subsidiaries) or (y) any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or foreign Law) or as a transferee or successor.
(e) Neither the Company nor any of its Subsidiaries has participated, or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2) (or any similar provision of state, local or foreign Law).
(f) Neither the Company nor any of its Subsidiaries has made constituted a request “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or entered into (ii) as part of a closing agreement, private letter ruling, advance tax ruling “plan” or similar agreement “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTransactions.
(g) Neither No written claim has been made by any Taxing Authority in a jurisdiction where the Company nor or any of its Subsidiaries does not currently file a Tax Return that it is a party or may be subject to any material Tax indemnification or Tax sharing or similar Tax agreement (other than in such jurisdiction, nor has any such agreement solely between assertion been threatened or proposed in writing and received by the Company and or any of its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Subsidiaries.
(h) Neither the Company nor any of its Subsidiaries has requested, has received or is subject to any written ruling of a Taxing Authority that will be binding on it for any taxable period ending after the Closing Date or has entered into any “closing agreement” as described in Section 7121 of the Code (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract Law).
(other than customary commercial Contracts (or Contracts entered into in i) There are no Encumbrances for material Taxes on any of the ordinary course assets of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionexcept for Permitted Encumbrances.
(j) Neither the Company nor any of its Subsidiaries has participated will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a “listed transaction” within result of any closing agreement, installment sale or open transaction on or prior to the meaning Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any intercompany transaction or excess loss account described in Section 1502 of Treasury Regulation 1.6011-4(b)(2the Code (or any corresponding provision of Law with respect to Taxes), or any election pursuant to Section 108(i) of the Code (or any similar provision of Law) made with respect to any taxable period ending on or prior to the Closing Date.
(k) The Neither the Company has not been, nor any of its Subsidiaries is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companyU.S. shareholder” (within the meaning of Section 368(a)(2)(F951(b) of the Code) of any foreign corporation which may be required to include in income any amounts under Section 951(a) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent or impede the Transactions Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(m) The Company is, and has been since formation, properly classified for the Intended Tax TreatmentUnited States federal income tax purposes as a corporation.
Appears in 2 contracts
Samples: Merger Agreement (Concho Resources Inc), Merger Agreement (Conocophillips)
Taxes. (a) All material Tax Returns required by Applicable Law to be filed by with any Taxing Authority by, or with respect to on behalf of, the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are trueare, correct or shall be at the time of filing, true and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have has paid (or has had paid on its behalf) or has withheld from amounts owing and remitted to any employee, creditor or other Person the appropriate Taxing Authority all material Taxes required by applicable Law to be withhelddue and payable, paid over to the proper Governmental Authority or, has otherwise established (or has had established on its behalf and for its sole benefit and recourse) in a timely manner all such withheld amounts required to have been so paid over and complied in accordance with GAAP an adequate accrual for all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTaxes through the Company Balance Sheet Date. All liabilities for Taxes that arose since the Company Balance Sheet Date arose in the ordinary course of business.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company or any of its Subsidiaries.
date hereof, (di) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against there is no Proceeding now pending with respect to the Company or any of its Subsidiaries in respect of any material Tax, or, to the knowledge of the Company, threatened in a writing received from a Governmental Authority and (ii) neither the Company nor any of its Subsidiaries has been informed in writing by any Governmental Authority that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Governmental Authority believes that the Company or any of its Subsidiaries presently in progress with respect was required to pay any material Taxes, nor has Tax that was not paid or file a material Tax Return that was not filed.
(d) Neither the Company or nor any of its Subsidiaries been notified in writing has granted any extension or waiver of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any the statute of limitations currently in effect with respect period applicable to any material Tax Return, which period (after giving effect to such extension or waiver) has not yet expired.
(e) Neither the Company nor any of its Subsidiaries (i) is or has ever been a member of a group of corporations with which it has filed (or been required to file) consolidated, combined or unitary Tax Returns, other than a group of which only the Company and its Subsidiaries are or were members or (ii) has any liability for Taxes of any Person (other than the Company or such Subsidiaries) pursuant to any Tax allocation or sharing agreement, under Treasury Regulations Section 1.1502-6 (or any similar provision of its Subsidiariesstate, local or foreign law), or as a transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made been either a request for “distributing corporation” or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect “controlled corporation” in a distribution to Taxes. Neither which Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode is applicable.
(g) Neither the Company nor any of its Subsidiaries is a party to have consummated or participated in, nor are currently participating in, any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of transaction which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transactiontax shelter” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not beentransaction as defined in Sections 6662, is not6011, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) or 6111 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
Taxes. (ai) All material Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Marriott:
(1) all Tax Returns required to be filed by or with respect to the Company or any of Marriott and its Subsidiaries subsidiaries, have been timely filed (taking into account any applicable extensions), (2) all such Tax Returns (taking into account all amendments thereto) are were true, complete and correct and complete in all material respects, (3) all Taxes shown as due and payable on such Tax Returns, and all material Taxes due and payable (whether or not shown reflected on any such Tax ReturnReturns) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over by Marriott and complied its subsidiaries have been paid or adequate reserves have been recorded in the Marriott Financial Statements, (4) all material respects Taxes of Marriott and its subsidiaries that are not yet due and payable have been adequately reserved for in the Marriott Financial Statements and (5) Marriott and its subsidiaries have duly and timely withheld all Taxes required to be withheld and such withheld Taxes have been either duly and timely paid to the proper Taxing Authority or properly set aside in accounts for such purpose;
(B) no written agreement or other written document waiving or extending, or having the effect of waiving or extending, the statute of limitations or the period of assessment or collection of any Taxes relating to Marriott or any of its subsidiaries has been filed or entered into with all applicable withholding any Taxing Authority, and related reporting requirements no power of attorney with respect to any such Taxes.Taxes has been granted to any person, in each case, that remains in effect;
(cC) There (1) no audits or other administrative proceedings or proceedings before any Taxing Authority are presently pending with regard to any Taxes or Tax Return of Marriott or any of its subsidiaries, as to which any Taxing Authority has asserted in writing any claim, and (2) no Liens Taxing Authority has asserted in writing any deficiency or claim for Taxes or any adjustment to Taxes with respect to which Marriott or any of its subsidiaries may be liable with respect to income or other Taxes that has not been fully paid or finally settled;
(D) neither Marriott nor any of its subsidiaries (1) is a party to or bound by or has any obligation under any Tax indemnification, separation, sharing or similar agreement or arrangement (other than exclusively among Marriott and its subsidiaries), (2) is or has been a member of any consolidated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than Permitted Liensa group of which Marriott is the common parent corporation), (3) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreementagreement pursuant to Section 7121 of the Code, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 predecessor provision or any similar provision of state, local or foreign Tax Law law or (4) has any liability for the payment of Taxes of any person as a transferee or successor or by Contract transferee;
(other than customary commercial Contracts (or Contracts entered into in E) none of the ordinary course assets of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Marriott or any of its Subsidiaries.subsidiaries is subject to any Lien for Taxes (other than Permitted Liens); and
(iF) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or neither Marriott nor any of its Subsidiaries does subsidiaries has engaged in any listed transaction, or any reportable transaction that has not file been properly disclosed on a Tax Returns that it is Return in accordance with Applicable Laws, within the meaning of Sections 6011, 6111 and 6112 of the Code or may be subject to taxation any similar provision of Tax law in that any other jurisdiction.
(jii) Neither the Company Marriott nor any of its Subsidiaries subsidiaries has participated in constituted either a “listed transactiondistributing corporation” within the meaning of Treasury Regulation 1.6011-4(b)(2).
or a “controlled corporation” (k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (A) within the past two years or (B) that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in connection with the Combination Transactions.
(liii) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company Neither Marriott nor any of its Subsidiaries subsidiaries has taken any action or agreed to take knows of any actionfact, nor to the knowledge of the Company agreement, plan or any of its Subsidiaries are there any facts or circumstances, other circumstance that could would reasonably be expected to prevent the Combination Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc), Agreement and Plan of Merger (Marriott International Inc /Md/)
Taxes. Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(a) All material Each Acquired Company has filed (or has had filed on its behalf) on a timely basis all Tax Returns as required by applicable Laws, except where failure to file a Tax Return does not have, and is not reasonably likely to have, a Company Material Adverse Effect. Each such Tax Return is accurate and complete in all material respects. There are no material Encumbrances for any Taxes on any of the assets of any of the Acquired Companies.
(b) The amounts reflected as Liabilities in the financial statements contained in the Company SEC Documents for all Taxes are adequate in all material respects to cover any and all Liabilities for all Taxes, whether or not disputed, that have been accrued with respect to, should have been accrued with respect to, or are applicable to the period ended on and including the date of such financial statements, or to any years and periods prior thereto and for which any of the Acquired Companies may be directly, indirectly or contingently liable in its own right or as a transferee of the assets of, or successor to, any Person.
(c) No federal, state, local or foreign audits or other Proceedings exist with regard to any material Taxes or Tax Returns of any of the Acquired Companies. None of the Acquired Companies has received any written notice that an audit or other Proceeding is pending or threatened with respect to any Taxes due from or with respect to such company or any Tax Return filed by or with respect to such company. None of the Company Acquired Companies has granted or been requested to grant any waiver of its Subsidiaries have been timely filed (taking into account any statutes of limitations applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such claim for Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimAll Tax deficiencies that have been claimed, assessment, deficiency proposed or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved the Acquired Companies have been fully paid or unpaidfinally settled. There are no pending Tax examinations as of the date of this Agreement.
(e) There is are no material Tax audit or other examination of the Company or outstanding requests for rulings with any of its Subsidiaries presently in progress Governmental Body with respect to any material Taxes, nor has Taxes that would materially affect the Company or operations of any of its Subsidiaries been notified in writing the Acquired Companies after the Closing Date. None of the Acquired Companies has any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests pending application with any Governmental Body requesting permission for any waivers change in accounting method or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariestax year.
(f) Neither None of the Company nor any of its Subsidiaries Acquired Companies has made filed a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesconsent under Code Section 341(f) concerning collapsible corporations.
(g) Neither None of the Company nor any of its Subsidiaries Acquired Companies is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into has been in the ordinary course past five (5) years a United States real property holding company within the meaning of businessCode Section 897(c)(2) not primarily related to Taxes).
(h) Neither None of the Acquired Companies has in the past three (3) years been a member of an affiliated group (within the meaning of Code Section 1504 or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated Tax Return (other than a group of which the Company is the common parent) nor has any of its Subsidiaries (i) is liable liability for Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesLaw).
(i) Within In the past three (3) yearstwo-year period ending with the Closing Date, none of the Acquiring Companies has distributed the stock of any corporation in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code or has been distributed in such a distribution, and prior to such period, no written claim has been such distribution was made by any Governmental Authority where with the Company plan or any intent of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionfacilitating the Merger.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Chiles Offshore Inc/New/), Merger Agreement (Ensco International Inc)
Taxes. (a) All The Buyer and each of its Subsidiaries has timely filed or caused to be filed (giving effect to all applicable extensions) with the appropriate Governmental Entity all material Tax Returns in all jurisdictions in which such Returns are required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all . None of the Buyer or any of its Subsidiaries is the beneficiary of any extension of time within which to file any Return (other than any extensions to file Returns obtained in the ordinary course of business). All material Taxes due and payable of the Buyer or any of its Subsidiaries (whether or not shown on any Tax ReturnReturns) that are due have been paidfully and timely paid to the relevant Governmental Entity.
(b) Neither the Buyer nor any of its Subsidiaries has received any notice of assessment or proposed assessment in connection with any material amount of Taxes, and there are no threatened or pending disputes, claims, audits, examinations, investigations or other proceedings regarding any material Taxes of the Buyer or any of its Subsidiaries which have not been fully paid or settled. There are no Liens for any material amount of Taxes (other than Permitted Liens) on any of the assets of the Buyer or any of its Subsidiaries. No claim has been made by any Governmental Entity in a jurisdiction where the Buyer or any of its Subsidiaries does not file a Return that such Person may be subject to a material amount of Taxes in that jurisdiction. None of the Buyer or any of its Subsidiaries has waived any statute of limitations in respect of a material amount of Taxes.
(c) The Company Buyer and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and has complied in all material respects with all applicable Laws relating to the withholding of Taxes and related reporting requirements with respect the payment thereof to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiariesappropriate Governmental Entity.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect Subject to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior changes to the Share Exchange Closing will not be, treated as an “investment company” within method or structure of effecting the meaning of Merger pursuant to Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby1.7, neither the Company Buyer nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the has knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, circumstances that could reasonably be expected to prevent or impede the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
(e) Neither the Buyer nor any of its Subsidiaries has engaged in any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b).
Appears in 2 contracts
Samples: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Taxes. (a) All Parent and each of its Subsidiaries have (i) timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (i) or clause (ii) hereof, with respect to matters contested in good faith or for which adequate reserves have been paidestablished in accordance with GAAP.
(b) The Company and each As of its Subsidiaries have withheld from amounts owing to any employeethe date of this Agreement, creditor there are no pending or ongoing audits, examinations, investigations or other Person all material Taxes required Proceedings by applicable Law to be withheld, paid over to the proper any Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements respect of Taxes of or with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Parent or any of its Subsidiaries.
(dc) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company All Taxes that Parent or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other Third Parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fd) Neither the Company Parent nor any of its Subsidiaries has made ever been a request for member of a consolidated, combined or entered into unitary Tax group (other than such a closing agreement, private letter ruling, advance tax ruling group the common parent of which is Parent or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesSubsidiaries).
(ge) Neither the Company Parent nor any of its Subsidiaries is a party to or is bound by any Tax indemnification sharing, Tax allocation or Tax sharing indemnification agreement or similar Tax agreement arrangement (other than any such an agreement solely or arrangement exclusively between the Company or among Parent and its existing Subsidiaries and or customary commercial Contracts (or Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not primarily related be terminated on or before the Closing Date without any future liability to Taxes)the Company or its Subsidiaries.
(f) There are no Liens for Taxes on any of the assets of Parent or any of its Subsidiaries other than Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries has participated in or been a party to a transaction that, as of the date of this Agreement, constitutes a “listed transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and applicable Treasury Regulations thereunder.
(h) Neither the Company Parent nor any of its Subsidiaries (i) is liable for Taxes has taken any action or knows of any other Person (other than fact that would reasonably be expected to prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Mergers from qualifying for the Intended Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesTreatment.
(i) Within Acquisition Sub is a newly formed entity created for the past three purpose of undertaking the First Merger. Prior to the Effective Time, Acquisition Sub will not have engaged in any other business activities and will have incurred no liabilities or obligations other than as contemplated by this Agreement.
(3j) yearsParent has made a valid election under Part I of Subchapter M of Subtitle A, no written Chapter 1, of the Code to be taxed as a RIC. Parent has qualified as a RIC with respect to its first taxable year ending on December 31, 2015, and with respect to each taxable year thereafter, and expects to so qualify for its taxable year including the Effective Time. No challenge to Parent’s status as a RIC is pending or has been threatened in writing.
(k) Each Subsidiary of the Parent that is a partnership, joint venture, or limited liability company has been since its formation treated for United States federal income Tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation.
(l) No claim has been made in writing by any Governmental a Taxing Authority in a jurisdiction where the Company Parent or any of its Subsidiaries does not file Tax Returns that it the Parent or any such Subsidiary is or may be subject to taxation in by that jurisdiction, and which, if upheld, would reasonably result in a material Tax liability.
(jm) Neither the Company Parent nor any of its Subsidiaries has participated in a “listed transaction” within any liability for the meaning Taxes of another Person other than the Parent and its Subsidiaries under Treasury Regulation 1.6011Section 1.1502-4(b)(26 (or any similar provision of state, local or foreign Law), as a transferee, successor or payable pursuant to a contractual obligation.
(kn) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated past five years (or otherwise as an part of a “investment companyplan (or series of related transactions)” within the meaning of Section 368(a)(2)(F355(e) of the Code of which the Mergers are also a part), neither the Parent nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 355(a) of the Code.
(lo) Except as contemplated by this Agreement and Neither the Transactions contemplated hereby, neither the Company Parent nor any of its Subsidiaries has taken any action requested a private letter ruling from the IRS or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions comparable rulings from qualifying for the Intended Tax Treatmentother Taxing Authorities.
Appears in 2 contracts
Samples: Merger Agreement (Alcentra Capital Corp), Merger Agreement (Crescent Capital BDC, Inc.)
Taxes. Except as set forth in Section 3.14(a) of the Company Disclosure Letter:
(a) All The Company and each of its Subsidiaries has timely filed or caused to be filed (giving effect to all applicable extensions) with the appropriate Governmental Entity all material Tax Returns in all jurisdictions in which such Returns are required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination . None of the Company or any of its Subsidiaries presently is the beneficiary of any extension of time within which to file any Return (other than any extensions to file Returns obtained in progress with respect to any the ordinary course of business). All material Taxes, nor has Taxes of the Company or any of its Subsidiaries (whether or not shown on any Returns) that are due have been notified fully and timely paid to the relevant Governmental Entity.
(b) Neither the Company nor any of its Subsidiaries has received any notice of assessment or proposed assessment in writing connection with any material amount of any request or threat for such an audit or other examinationTaxes, and there are no waiversthreatened or pending disputes, extensions claims, audits, examinations, investigations or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to other proceedings, regarding any material Taxes of the Company or any of its Subsidiaries which have not been fully paid or settled. There are no Liens for any material amount of Taxes (other than Permitted Liens) on any of the assets of the Company or any of its Subsidiaries. No claim has been made by any Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries does not file a Return that such Person may be subject to a material amount of Taxes in that jurisdiction. None of the Company or any of its Subsidiaries has waived any statute of limitations in respect of a material amount of Taxes.
(fc) The Company and each of its Subsidiaries has complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof to appropriate Governmental Entity.
(d) Neither the Company nor any of its Subsidiaries has made been a request member of an affiliated group filing a consolidated federal income Tax return (other than a group the common parent of which was the Company or any of its Subsidiaries) or has any liability for Taxes of any Person (other than the Company or entered into any Subsidiary) arising from the application of Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, or as a closing agreementtransferee or successor, private letter ruling, advance tax ruling by contract or similar agreement with any Governmental Authority with respect to Taxes. otherwise.
(e) Neither the Company nor any of its Subsidiaries is a party to or is otherwise bound by any material Tax sharing, allocation or indemnification agreement or arrangement, other than (i) an agreement or arrangement the parties to which are solely the Company and/or one or more of its Subsidiaries, and (ii) any customary Tax indemnifications contained in credit or other commercial agreements the primary purpose of which agreements does not relate to Taxes.
(f) Within the past two (2) years, neither the Company nor any of its Subsidiaries has made been a change “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of any method of accounting with respect to any Taxesthe Code.
(g) Neither the Company nor any of its Subsidiaries is a party to has engaged in any Tax indemnification “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to TaxesTreasury Regulations Section 301.6111-2(b).
(h) 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 Tax period as a result of (i) is liable for Taxes of an installment sale or “open transaction” disposition before the Closing; (ii) any other Person prepaid amounts received or deferred revenue accrued prior to the Closing; (other than the Company and its Subsidiariesiii) under Treasury Regulation Section 1.1502-6 any intercompany transactions or any excess loss account described in the Treasury Regulations under Section 1502 of the Code that occurred or arose prior to the Closing; (iv) any “closing agreement” as described in Section 7121 of the Code executed prior to the Closing; (v) adjustments under Section 481 of the Code relating to any change of accounting prior to the Closing, or, in the case of each of the foregoing, any corresponding or similar provision of state, local local, or foreign non-U.S. Law; (vi) the recapture of any Tax Law credit or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in special Tax benefit that arose prior to the ordinary course of business) not primarily related to Taxes) Closing; or (iivii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income any Transition Tax purposes, other than a group Obligation that accrued prior to the common parent of which was or is the Company or any of its SubsidiariesClosing.
(i) Within the past three (3) years, no written claim has been made by Subject to any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior changes to the Share Exchange Closing will not be, treated as an “investment company” within method or structure of effecting the meaning of Merger pursuant to Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby1.7, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the has knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, circumstances that could reasonably be expected to prevent or impede the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Taxes. (a) All material The affiliated group (within the meaning of Section 1504(a) of the Code) of TreeCon has timely filed all federal, state and other Tax Returns returns required to be have been filed by it or with respect to them for each taxable period during which the Company or any of Borrower and its Subsidiaries have been timely filed (taking into account any applicable extensions), were members of the affiliated group; all such Tax Returns (taking into account all amendments thereto) are true, returns were correct and complete in all material respects, and ; all material income or other Taxes due and payable owed by such affiliated group (whether or not shown on any the Tax Returnreturns) have been paidpaid for each taxable period during which the Borrower and its Subsidiaries were members of the affiliated group; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(b) The Company Borrower and each of its Subsidiaries have withheld from and paid all Taxes required to be withheld and paid by it or them in connection with amounts paid or owing to any employeeemployees, creditor creditors, stockholders or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird parties.
(c) There are no Liens for Taxes Except as set forth in Schedule 3.19, (other than Permitted Liensi) upon the property or assets none of the Company Borrower, TreeCon or any of its their respective Subsidiaries has been advised that any Tax returns have been or are being audited by any Governmental Authority, (ii) there are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment of any Taxes or deficiency against the Borrower, TreeCon or any of their respective Subsidiaries, (iii) there are no actions, suits, proceedings or claims now pending by or against the Borrower, TreeCon or any of their respective Subsidiaries in respect of any Taxes or assessments, and (iv) there is no pending or, to the best knowledge of the Borrower Parties, threatened audit or investigation of the Borrower, TreeCon or any of their respective Subsidiaries by any Governmental Authority relating to any Taxes or assessments, or any claims for additional Taxes or assessments asserted by any Governmental Authority; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(d) No claimExcept as may be required or permitted under the Code with respect to the filing of consolidated Tax returns and as may be provided in Section 9.4, assessmentnone of the Borrower, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company TreeCon or any of its their respective Subsidiaries is a party to or bound by any Tax sharing, Tax indemnity or Tax allocation agreement or other similar arrangement; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that remains unresolved or unpaidsuch representation is required to be true, such representation is made to the knowledge of Borrower.
(e) There is no material Tax audit or other examination Pursuant to Section 355(c) of the Company or any Code, TreeCon will recognize no gain in connection with the distribution of its Subsidiaries presently the shares of Common Stock by TreeCon in progress connection with the Spin-Off; provided, that, with respect to any material TaxesTreeCon, nor has for all times after the Company or any Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesBorrower.
(f) Neither TreeCon did not distribute any property in the Company nor any Spin-Off other than qualified property within the meaning of its Subsidiaries has made a request for or entered into a closing agreementSection 355(c)(2)(B) of the Code; provided, private letter rulingthat, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither TreeCon, for all times after the Company nor any Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of its Subsidiaries has made a change of any method of accounting with respect to any TaxesBorrower.
(g) Neither None of the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into Common Stock distributed by TreeCon in the ordinary course Spin-Off will be treated as other property pursuant to Section 355(a)(3)(B) of businessthe Code, and the Common Stock does not constitute non-qualified preferred stock as defined in Section 351(g)(2) not primarily related of the Code; provided, that, with respect to Taxes)TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(h) Neither None of the Company nor any Common Stock distributed by TreeCon in the Spin-Off will be distributed in a disqualified distribution within the meaning of its Subsidiaries Section 355(d)(2) of the Code (iprovided, however, that the Borrower shall not be deemed to have breached this clause (h) if TreeCon is liable for Taxes deemed after the Spin-Off to have distributed shares of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateCommon Stock in a disqualified distribution and, local or foreign Tax Law or as a transferee result thereof, the Borrower does not incur losses, claims, damages, obligations, liabilities, judgments, costs or successor or by Contract (other than customary commercial Contracts (or Contracts entered into expenses in excess of $250,000 in the ordinary course aggregate); provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesBorrower.
(i) Within There is no plan or arrangement within the past three meaning of Section 355(e) of the Code pursuant to which one or more persons will acquire stock representing a fifty percent (350%) yearsor greater interest in either TreeCon or the Borrower; provided, no written claim has been that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made by any Governmental Authority where to the Company or any knowledge of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionBorrower.
(j) Neither There is no excess loss account with respect to the Company nor Stock of the Borrower or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)Subsidiary.
(k) The Company has not beenFor two years preceding the Spin-Off Effective Date, no person or persons have acquired an interest in TreeCon that will result in one or more persons acquiring stock representing a 50-percent or greater interest in the Borrower or TreeCon as a result of the Spin-Off; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is notrequired to be true, and immediately prior such representation is made to the Share Exchange Closing knowledge of Borrower.
(l) Neither the Spin-Off, nor any revisions to compensation arrangements effected in connection with the Spin-Off, will not be, treated result in any liability of the Borrower (including any liability for an indemnity pursuant to any employment arrangement) as an “investment company” within a result of the meaning application of Section 368(a)(2)(F280G or any disallowance of the deduction of any compensation expense as a result of the application of Section 162(m) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Loan and Security Agreement (Overhill Farms Inc), Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp)
Taxes. (a) All material Parent and each of its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material Taxes due and payable ; (whether or not shown on any Tax Returnii) have been paid.
paid in full all Taxes that are required to be paid or made adequate provision in the financial statements of Parent; (biii) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, independent contractor, creditor or other Person third party all material Taxes required by applicable Law amounts that Parent or any of its Subsidiaries is obligated to be withheld, have withheld and have timely paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to the relevant Tax authority; and (iv) have been so paid over disclosed and complied reserved for any uncertain Tax positions.
(b) To Parent’s Knowledge, none of the Tax Returns of Parent or any of its Subsidiaries are currently under any audit, suit, proceeding, examination or assessment by the IRS or the relevant state, local or foreign Tax authority and neither Parent nor any of its Subsidiaries has received written notice from any Tax authority that an audit, suit, proceeding, examination or assessment in all material respects with all applicable withholding and related reporting requirements with respect of such Tax Returns or matters pertaining to such TaxesTaxes are pending or threatened.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment deficiencies for any material amount of Tax has Taxes have been asserted in writing or assessed by any Governmental Authority assessments made against the Company Parent or any of its Subsidiaries that remains unresolved have not been paid or unpaid.
resolved in full. No claim has been made in writing during the past five (e5) There is no material Tax audit or other examination of the Company years against Parent or any of its Subsidiaries presently by any Tax authorities in progress with respect to any material Taxes, nor has the Company a jurisdiction where Parent or any of its Subsidiaries been notified in writing of any request does not file Tax Returns that Parent or threat for such an audit its Subsidiaries is or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect may be subject to any material Taxes of the Company or any of its Subsidiariestaxation by that jurisdiction.
(fd) Neither the Company Parent nor any of its Subsidiaries has made a request for granted any waiver, extension or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority comparable consent regarding the application of the statute of limitations with respect to Taxes. Taxes or Tax Return that has not expired, nor has any request for any such waiver or consent been made with respect to any statute of limitations that has not since expired.
(e) Parent is not, and during the past five (5) years has never been, a “United States real property holding corporation” within the meaning of Section 897 of the Code.
(f) No Liens for Taxes exist with respect to any of the assets of Parent or any of its Subsidiaries, except for Liens for Taxes not yet due and payable.
(g) Neither the Company Parent nor any of its Subsidiaries has made a change of entered into any method of accounting closing agreements, private letter rulings, technical advice memoranda or similar agreement or rulings with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or authority, nor have any been issued by any Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)authority.
(h) Neither the Company Parent nor any of its Subsidiaries (iA) is liable or has ever been a member of an affiliated, combined, consolidated or unitary Tax group for purposes of filing any Tax Return, other than an affiliated, combined, consolidated or unitary Tax group of which Parent is or was the common parent, (B) has any liability for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor or successor, by Contract or otherwise, (C) is a party to or bound by any Tax sharing or allocation agreement or has any other current or potential contractual obligation to indemnify any Person (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Parent or any of its Subsidiaries) with respect to Taxes, (D) has, or has ever had, a permanent establishment in any country other than the country of its organization, or (E) has granted to any Person any power of attorney that is currently in force with respect to any Tax matter.
(i) Within None of Parent, any of its Subsidiaries, or any Person acting on their behalf has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustments pursuant to Section 481(a) of the past three Code (3or any similar provisions of state, local or foreign Law) yearsafter the Closing Date, no written claim has been made by any Governmental Authority where the Company nor will Parent or any of its Subsidiaries does not file Tax Returns that it is (or may their successor by merger) be subject required to taxation in that jurisdictiontake into account income after the Effective Time any items economically realized prior to the Effective Time.
(j) Parent and each of its Subsidiaries have complied in all material respects with all requirements to report information for Tax purposes to any individual or Tax authority, and have collected and maintained all material certifications and documentation in valid and complete form with respect to any such reporting obligation, including, without limitation, valid IRS Forms W-8 and W-9.
(k) Neither the Company Parent nor any of its Subsidiaries has participated in a any “listed transactionreportable transactions” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(kl) The Company None of Parent or its Subsidiaries has not beenbeen a “distributing corporation” or “controlled corporation” (i) in any distribution occurring during the last 30 months that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, is not, and immediately prior to the Share Exchange Closing will not be, treated as an local or foreign Law) or (ii) in any distribution that could otherwise constitute part of a “investment companyplan” or “series of related transactions” (within the meaning of Section 368(a)(2)(F355(e) of the Code) of which the Merger is a part.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (CVB Financial Corp), Merger Agreement (CVB Financial Corp)
Taxes. (a) All material No Seller, nor any subsidiary nor any member of a Relevant Group has failed to file any Tax Returns Return required to be filed filed, which failure could result in the imposition of any Lien on or against the Assets, the Business or Buyer or in any liability to Buyer, as transferee or otherwise. All Taxes imposed on each Seller, any subsidiary or any member of a Relevant Group the non-payment of which could result in a Lien on or against the Assets, the Business or Buyer or in any liability to Buyer, as transferee or otherwise, have been or will prior to the Closing Date be paid. All deposits required to be made by any Seller, any subsidiary or any member of a Relevant Group in respect of any material Tax, including, without limitation, withholding taxes, have been or will be made in a timely fashion. There are no material Tax deficiencies or claims asserted against any Seller, any subsidiary or any member of a Relevant Group. There is no basis for any Tax deficiency or claim which could result in the imposition of any Lien on the Assets, the Business or Buyer or in any liability to Buyer, as transferee or otherwise. Neither Buyer nor any of its subsidiaries shall have any liability for any Tax imposed on or with respect to any subsidiary that is attributable to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Pre-Closing Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidPeriod.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries Seller is a party to any Tax indemnification allocation or Tax sharing agreement or similar Tax agreement (other than understanding that could, under any such agreement solely between circumstances, require any payment by Buyer, any of its subsidiaries or any affiliate thereof after the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course Closing Date. None of business) not primarily related to Taxes).
(h) Neither the Company Buyer nor any of its Subsidiaries (i) subsidiaries shall have any liability for any Tax imposed on or with respect to any subsidiary that is liable for Taxes of any other Person (other than attributable to the Company and its Subsidiaries) under Treasury Regulation Section 1.1502Pre-6 or any similar provision of state, local or foreign Closing Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesPeriod.
(ic) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any For purposes of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.Agreement:
Appears in 2 contracts
Samples: Asset Purchase Agreement (Town & Country Corp), Asset Purchase Agreement (Commemorative Brands Inc)
Taxes. (a) All Each of the Company and the Company Subsidiaries has filed, or caused to be filed, all material Tax Returns that it was required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any file under applicable extensions)laws and regulations, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, . The Company and the Company Subsidiaries has timely paid (or there has been timely paid with respect to it) all material Taxes due and payable (whether or not shown on any Tax Returnthereon) have been paid.
(b) The Company due and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) owing. There are no Liens for Taxes (other than Permitted LiensTaxes not yet delinquent or being contested in good faith and for which reserves in accordance with GAAP have been established on the Company Financial Reports as adjusted in the ordinary course of business through the Effective Time) upon the property or any assets of the Company or any of its the Company Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(eb) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesaudit, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions investigation dispute or written requests for any waivers or extensions of any statute of limitations currently in effect with respect claim relating to any material Taxes of the Company or any of its Subsidiariesthe Company Subsidiaries which remains unpaid or unresolved.
(fc) Neither the Company nor any of its the Company Subsidiaries has made a request for waived any statutes of limitations in respect of material Taxes which waiver remains in effect or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with agreed to any Governmental Authority extension of time with respect to Taxesa material Tax assessment or deficiency which assessment or deficiency has not been paid.
(d) Except as set forth in Section 4.15(d) of the Disclosure Schedule, the Transactions (including the Merger) will not result in the payment or series of payments by the Company or any of the Company Subsidiaries to any person of an “excess parachute payment” within the meaning of Section 280G of the Code, or any similar payment, that is not deductible for federal, state, local or foreign Tax purposes. Neither Additionally, there is no contract to which the Company or any of the Company Subsidiaries is a party that, individually or collectively, (i) could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) or Section 280G of the Code, or (ii) could require the Company, the Company Subsidiaries or Parent or its subsidiaries to gross up a payment to any employee of the Company or any of the Company Subsidiaries for Tax related payments or cause a penalty tax under Section 4999 or Section 409A of the Code.
(e) None of the Company or the Company Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return (other than Tax Returns for which the Company is currently the common parent) provided for under the laws of the U.S., any foreign jurisdiction or any state or locality with respect to Taxes for any taxable year and neither Company nor any Company Subsidiary has any obligation to contribute to the payment of its any material Tax of any person other than the Company or a Company Subsidiary under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as transferee or successor.
(f) None of the Company or any of the Company Subsidiaries has made constituted either a change “distributing corporation” or a “controlled corporation” within the meaning of any method Section 355(a)(1)(A) of accounting the Code in a distribution of stock qualifying under Section 355 of the Code in the two years prior to the date of this Agreement (or will constitute such a corporation in the two years prior to the Effective Time) or that otherwise constitutes part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with respect to any Taxesthe Merger.
(g) Neither None of the Company nor any of its Subsidiaries Company Subsidiary is a party to or bound by any Tax indemnification or Tax allocation, sharing or similar Tax indemnity agreement (for the avoidance of doubt, excluding indemnification provisions for Taxes contained in credit agreements, leases or other than any such agreement solely between commercial agreements the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course primary purposes of business) which do not primarily related relate to Taxes).
(h) Neither the Company nor any Company Subsidiary will be required to include amounts in income, or exclude items of its Subsidiaries (i) is liable for Taxes of any other Person (other than deduction, in a taxable period beginning after the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateMerger Closing Date, local or foreign Tax Law or as a transferee result of (1) a change in method of accounting occurring prior to the Merger Closing Date, (2) an installment sale or successor or by Contract (other than customary commercial Contracts open transaction arising in a taxable period (or Contracts entered into in portion thereof) ending on or before the ordinary course of businessMerger Closing Date, (3) not primarily related a prepaid amount received, or paid, prior to Taxesthe Merger Closing Date, (4) deferred gains arising prior to the Merger Closing Date or (ii5) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiarieselection under Section 108(i).
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated engaged in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of defined in Section 368(a)(2)(F6707A(c)(2) of the CodeCode and Treasury Regulation Section 1.6011-4(b).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Peregrine Semiconductor Corp), Merger Agreement (Peregrine Semiconductor Corp)
Taxes. (a) All income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all . All material Taxes due and payable (whether or not shown on any Tax Return) have been fully and timely paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there . There are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law Law, or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing Acquisition Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(ln) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions from qualifying for prevent, impair or impede the Intended Tax Treatment.
Appears in 2 contracts
Samples: Business Combination Agreement (Bridgetown Holdings LTD), Business Combination Agreement (Bridgetown Holdings LTD)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries Purchaser and each Purchaser Subsidiary have been duly and timely filed as required by applicable Law (taking into account within any applicable extensions), extension periods) and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all . All material Taxes shown to be due and payable on or before the Closing Date (whether or not shown or required to be shown on any Tax Return) have been paidtimely paid in full.
(b) The Company No Proceeding related to any Liability in respect of Taxes or any Tax Return of Purchaser or any Purchaser Subsidiary by any Governmental Authority is presently pending, nor has Purchaser or any Purchaser Subsidiary received any notice of any request for such an audit or other examination.
(c) Purchaser and each of its the Purchaser Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and each complied in all material respects with all applicable Laws, rules, and regulations relating to the payment and withholding of Taxes and related has duly and timely withheld and has paid over to the appropriate Governmental Authority all amounts required to be so withheld and paid over in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder, or other third party for all periods under all applicable Law, and has complied with all material information reporting requirements with respect to such Taxesand backup withholding provisions of applicable Law.
(cd) There are no material Liens for with respect to Taxes on the assets or business of Purchaser or any Purchaser Subsidiary (other than Permitted Liens) upon on any of the property properties or assets of Purchaser, any Purchaser Subsidiary or the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidPurchaser Shares.
(e) There is no material Tax audit or other examination of the Company or Neither Purchaser nor any of its Subsidiaries presently in progress with respect to any material Taxes, nor Purchaser Subsidiary has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of waived any statute of limitations currently in effect with respect applicable to any material Taxes claim for Taxes, and neither Purchaser nor any Purchaser Subsidiary has requested or been granted an extension of the Company or time for filing any of its SubsidiariesTax Return (other than automatic extensions for income Tax Returns).
(f) Neither Purchaser is not a “foreign person” as defined in Section 1445(f)(3) of the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode.
(g) Neither Purchaser is not and has not been a United States real property holding corporation within the Company nor meaning of Code §897(c)(2) at any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between time during the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into applicable period specified in the ordinary course of business) not primarily related to TaxesCode §897(c)(1)(A)(ii).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateExcept as set forth on Schedule 6.15(h), local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within within the past three (3) years, no written claim neither Purchaser nor any Purchaser Subsidiary has been made ever distributed stock of another Person, or had its stock distributed by any Governmental Authority where another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionCode.
(ji) Neither the Company Purchaser nor any of its Subsidiaries Purchaser Subsidiary has participated in entered into a “listed transaction” within the meaning of Treasury Regulation §1.6011-4(b)(2).
(kj) The Company No written claim has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” been made within the meaning of Section 368(a)(2)(Flast three (3) of the Codeyears by a Governmental Authority in a jurisdiction where Tax Returns with respect to either Purchaser or any Purchaser Subsidiary are not filed asserting that Purchaser or any Purchaser Subsidiary is or may be subject to Tax in that jurisdiction.
(lk) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company Neither Purchaser nor any of its Subsidiaries Purchaser Subsidiary has taken requested or received a ruling from any action Governmental Authority or agreed to take signed a closing or other agreement with any action, nor to Governmental Authority which would result in taxable income for a taxable period after the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 2 contracts
Samples: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) filed all material federal, state, local and foreign Tax Returns returns and reports (collectively, “Tax Returns”) required to be filed by it, and all such Tax Returns were correct and complete in all material respects, and (ii) paid and discharged all material Taxes required to be paid or discharged. The most recent financial statements contained in the Company SEC Reports reflect a reserve in accordance with GAAP for all Taxes payable by the Company or any of its Subsidiaries for all taxable periods or portions thereof through the date of such financial statements. Since the date of the most recent financial statements contained in the Company SEC Reports, no Taxes have accrued with respect to the Company or any of its Subsidiaries other than Taxes accrued in the ordinary course of business. Each of the Company and its Subsidiaries has withheld all Taxes required to be withheld by it and such withheld Taxes have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidpaid to the proper taxing authority.
(b) The Except as described in Section 4.16(b) of the Company and each Disclosure Letter:
(i) no contract or other document waiving or extending the statute of limitations or the period of assessment or collection of any Taxes has been filed or entered into by the Company or any of its Subsidiaries have withheld from amounts owing to with any employeetaxing authority;
(ii) no taxing authority is now asserting in writing or, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required Company’s knowledge, threatening to have been so paid over and complied in all assert against the Company or any of its Subsidiaries any material respects with all applicable withholding and related reporting requirements with respect to such deficiency or claim for additional Taxes.;
(ciii) There there are no Liens pending material audits of the Company or any of its Subsidiaries by any taxing authority; and
(iv) there are no Encumbrances for Taxes (other than Permitted LiensEncumbrances) upon any of the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(gc) Neither the Company nor any of its Subsidiaries is a party to any Tax contract providing for the allocation or sharing of, or indemnification or Tax sharing or similar Tax agreement (other than from, Taxes with any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) person. Neither the Company nor any of its Subsidiaries (i) is liable has any liability for the Taxes of any other Person (other than the Company and its Subsidiaries) another person under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law), or as a transferee or successor successor, by contract, or otherwise. There are no outstanding requests by Contract the Company or any of its Subsidiaries for any Tax ruling from any taxing authority and neither the Company nor any of its Subsidiaries has (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessi) not primarily related to Taxes) received a Tax ruling or (ii) has ever been entered into any closing agreement or other similar contract with a member taxing authority relating to Taxes of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries, in each case, effective with respect to a taxable period for which the statute of limitations is still open or a taxable period ending after the date of the Closing. The Company is not, nor was it any time during the five-year period ending on the date hereof, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code. The utilization of the net operating losses and tax credits of the Company and its Subsidiaries is not subject to any limitation under Section 382 or Section 383 of the Code or the “separate return limitation year” rules of the consolidated return regulations. Neither the Company nor any of its Subsidiaries has distributed the stock of another company in a transaction that was purported or intended to be governed by Section 355 or Section 361 of the Code. Neither the Company nor any of its Subsidiaries has engaged in any listed or other reportable transaction within the meaning of Treasury Regulations § 1.6011-4(b).
(id) Within To the past three (3) yearsCompany’s knowledge, no written claim has been made by any Governmental Authority where tax authority of a jurisdiction in which the Company or any of its Subsidiaries does not file Tax Returns has asserted that it is or may be subject obligated to taxation file Tax Returns in that jurisdiction.
(j) . Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, been or is not, and immediately prior required to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of make any adjustment pursuant to Section 368(a)(2)(F481(a) of the Code.
(l) Except as contemplated Code or any similar provision of state, local or foreign tax law by this Agreement reason of any change in any accounting method, there is no application pending with any taxing authority requesting permission for any change in any accounting method for Tax purposes and the Transactions contemplated hereby, neither no taxing authority has proposed in writing any such adjustment or change in accounting method. Neither the Company nor any of its Subsidiaries has taken any action will be required to include in the gross income of a taxable period ending after the Closing Date income or agreed gain attributable to take any actioncash received, nor to the knowledge or an account receivable that arose, in a prior taxable period and that was not recognized in that prior taxable period, as a result of the Company installment method, the completed contract method or the cash method of accounting or any other method of its Subsidiaries are there any facts or circumstances, accounting that could reasonably be expected to prevent defers the Transactions from qualifying for the Intended Tax Treatmentrecognition of income.
Appears in 2 contracts
Samples: Merger Agreement (Sl Industries Inc), Merger Agreement (Handy & Harman Ltd.)
Taxes. (a) All Except as set forth in Section 3.15(a) of the Company Disclosure Schedule, all material Tax Returns that are required to be filed by or with respect to the Company or any of its Subsidiaries and each Company Subsidiary have been filed or will be filed in a timely filed manner (taking into account any with applicable extensionsextension periods), all and such Tax Returns (taking into account all amendments thereto) are true, correct accurate and complete in all material respects. All Taxes shown to be due on such Tax Returns have been timely paid in full or will be timely paid in full by the due date thereof, any deficiencies resulting from examinations of such Tax Returns have either been paid or are being contested in good faith, and no extensions or waivers of statutes of limitation have been given by or requested with respect to any Taxes of the Acquired Companies. The Company has made available to Parent copies of all material Taxes due Tax Returns, Tax opinions and payable legal memoranda, audit reports, letter rulings and similar documents for the Acquired Companies for the past three (whether or not shown on 3) years, including any Tax Return) have been paidruling obtained from any Israel Tax Authority. No power of attorney granted by the Company or any of the Company Subsidiaries with respect to any Taxes is currently in force.
(b) The Company and each of its Subsidiaries Acquired Companies have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and related reporting requirements with respect have duly and timely withheld and have paid over to such Taxesthe appropriate Governmental Authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(c) There are no Liens for Taxes (other than Permitted Liens) upon Neither the property or assets Company nor any Company Subsidiary has received notice of any claim made by a Governmental Authority in a jurisdiction in which the Company or any of its SubsidiariesCompany Subsidiary does not file Tax Returns that the Company or a Company Subsidiary may be required to file Tax Returns or to pay Taxes to that jurisdiction.
(d) No claimfederal, assessmentstate, deficiency local or proposed adjustment for any material amount foreign audits, examinations or other administrative proceedings have been commenced and, are currently pending or, to the knowledge of Tax has the Company, have been asserted otherwise threatened (in writing or assessed by otherwise) with regard to any Governmental Authority against the Company or Tax Returns with respect to Taxes of any of its Subsidiaries that remains unresolved or unpaidAcquired Company.
(e) There is no material Tax audit Lien (other than for current Taxes not yet due and payable) against the assets of any of the Acquired Companies.
(f) The Transactions (including the Merger) will not result in the payment or other examination series of payments by the Company or any of the Company Subsidiaries to any person of an “excess parachute payment” within the meaning of Section 280G of the Code, or any similar payment, which is not deductible for federal, state, local, or foreign Tax purposes. Additionally, there is no contract to which the Company or any of the Company Subsidiaries is a party, or by which it is bound, which, individually or collectively, (i) could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) or Section 280G of the Code, (ii) is subject to Section 409A of the Code, or (iii) could require the Company, the Company Subsidiaries or Parent or its subsidiaries to gross up a payment to any employee of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company Subsidiaries for Tax related payments or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made cause a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any penalty Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) 409A of the Code.
(lg) The accruals and reserves for Taxes reflected on the Balance Sheet, are adequate in all material respects to cover all Taxes accruable through such date (including interest and penalties, if any, thereon) and any reserve for deferred Taxes to reflect timing differences between book and Tax items or carryforwards for all Tax periods and portions thereof, in each case in accordance with U.S. GAAP.
(h) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.set forth in Section 3.15(h)
Appears in 2 contracts
Samples: Merger Agreement (Retalix LTD), Merger Agreement (Retalix LTD)
Taxes. (a) All Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (a) the Company and each of its subsidiaries and Affiliated Entities have duly and timely filed (taking into account any extensions of time for filing) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, (b) the Company and each of its subsidiaries and Affiliated Entities have timely paid all material Taxes due and payable (whether or not shown on any such Tax Return) Returns), except Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been paid.
(b) The established in accordance with GAAP in the Company and each of its Subsidiaries have withheld from amounts owing to any employeeSEC Documents, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There there are no material audits, examinations, investigations or other proceedings in respect of income or other material Taxes of the Company or any of its subsidiaries or Affiliated Entities that are in progress, (d) no material deficiency or proposed adjustment which has not been paid or resolved for any amount of Tax has been asserted or assessed by any taxing authority in writing against the Company or any of its subsidiaries or Affiliated Entities, (e) neither the Company nor any of its subsidiaries or Affiliated Entities has consented to extend the time in which any material Tax may be assessed or collected by any taxing authority, (f) there are no material Liens for Taxes (other than Permitted Liens) upon any of the property or assets of the Company or any of its Subsidiaries.
subsidiaries or Affiliated Entities, (dg) No claimall material Taxes that the Company and its subsidiaries and Affiliated Entities have been required to collect or withhold have been duly collected or withheld and to the extent required, assessmenthave been duly paid to the proper taxing authority, deficiency (h) neither the Company nor any of its subsidiaries or proposed adjustment for Affiliated Entities has participated in any material amount of Tax “listed transaction” as defined in Treasury Regulations Section 1.6011-4, (i) no written claim has been asserted in writing or assessed made by any Governmental Authority against taxing authority in a jurisdiction where the Company or any of its Subsidiaries subsidiaries or Affiliated Entities, as the case may be, does not file Tax Returns that remains unresolved the Company or unpaid.
any of such subsidiaries or Affiliated Entities is or may be subject to Tax by that jurisdiction, (ej) There is no material neither the Company nor any of its subsidiaries or Affiliated Entities has been a member of any “affiliated group” as defined in Section 1504 of the Code (other than an affiliated group the common parent of which was the Company) filing a consolidated United States federal income Tax audit Return or other examination group filing a consolidated, combined, affiliated, unitary or similar income Tax Return, (k) neither the Company nor any of its subsidiaries or Affiliated Entities has any liability for Taxes of any other person (other than the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has subsidiaries or Affiliated Entities) arising from the Company or any application of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar analogous provision of state, local or foreign Tax Law or Law, as a transferee or successor successor, or otherwise, (l) neither the Company nor any of its subsidiaries or Affiliated Entities is a party to or bound by Contract any Tax sharing, Tax indemnity or similar agreement or arrangement (in each case, other than customary ancillary provisions in commercial Contracts (or Contracts agreements that do not relate primarily to Taxes entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member the business of an affiliatedthe Company, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent any subsidiary of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Affiliated Entity).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F(m) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action subsidiaries or agreed Affiliated Entities was a “distributing corporation” or “controlled corporation” in a transaction intended to take any action, nor to the knowledge qualify under Section 355 of the Company or any Code within the past two (2) years.
(b) For purposes of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Taxes. Except as set forth on Section 5.17 of the Company Disclosure Schedule:
(a) All material Tax Returns required to be filed (taking into account extensions of time for filing) by or with respect to the Company or any Subsidiary of its Subsidiaries the Company have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all . All material Taxes that are due and payable (whether by the Company or not shown on any Tax Return) Subsidiary of the Company have been paidpaid in full.
(b) The There is no outstanding claim, deficiency or assessment against the Company or any Subsidiary of the Company for any Taxes that has been asserted in writing by any Governmental Body, and no written claim has been made, within the preceding four years, by a Governmental Body in a jurisdiction where the Company or any Subsidiary of the Company does not file Tax returns or pay Taxes that it is obligated to file Tax Returns or pay Taxes in such jurisdiction. There is no pending audit, examination or other proceeding (and the Company and each the Subsidiaries of its Subsidiaries the Company have withheld from amounts owing to not received notice in writing of any employeeproposed or threatened audit, creditor examination or other Person all material Taxes required by applicable Law to be withheld, paid over proceeding) relating to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for assessment or collection of any Taxes (other than Permitted Liens) upon the property or assets of due from the Company or any of its Subsidiaries.
(c) All Taxes required to be withheld, collected or deposited by or with respect to the Company or any Subsidiary of the Company have been timely withheld, collected or deposited as the case may be, and to the extent required, have been paid to the relevant taxing authority.
(d) No claim, assessment, deficiency There are no outstanding agreements or proposed adjustment waivers extending the time for the assessment or payment of any material amount Taxes of Tax has been asserted in writing the Company or assessed by any Governmental Authority against Subsidiary of the Company.
(e) There are no Liens (other than Permitted Liens) on any of the assets of the Company or any of its Subsidiaries that remains unresolved arose in connection with any failure (or unpaid.
(ealleged failure) There is no material Tax audit or other examination of the Company or to pay any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTax.
(f) Neither the Company nor any Subsidiary of the Company has participated, or is currently participating, in any “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(g) Neither the Company nor any Subsidiary of the Company has previously been a member of a U.S. affiliated group electing to file a consolidated Tax Return.
(h) Neither the Company nor any Subsidiary of the Company is a party to any Tax allocation, sharing or indemnity Contract or arrangement (not including, for the avoidance of doubt (i) an agreement or arrangement solely among the members of a group the common parent of which is the Company or any of its Subsidiaries has made a request for Subsidiaries, or (ii) any Tax sharing or indemnification provisions contained in any agreement entered into a closing agreementin the ordinary course of business and not primarily relating to Tax (e.g., private letter rulingleases, advance tax ruling credit agreements or similar agreement with any Governmental Authority with respect to Taxesother commercial agreements)). Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable liability for Taxes of any other Person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any Subsidiary of its Subsidiaries the Company has participated constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or (ii) as part of a “listed transactionplan” or “series of related transactions” (within the meaning of Treasury Regulation 1.6011-4(b)(2)Section 355(e) of the Code) in conjunction with the Transactions.
(kj) The After reasonable diligence, neither the Company nor any Subsidiary of the Company is aware of the existence of any fact, or has not beentaken or agreed to take any action, is not, and immediately prior to that would prevent the Share Exchange Closing will not be, treated Integrated Mergers from qualifying as an a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code.
(lk) Except as contemplated by Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 5.17 and Section 5.18 are the only representations and warranties in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor with respect to the knowledge Tax matters of the Company or any Subsidiary of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCompany.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)
Taxes. (a) All material The Company and each Company Subsidiary have (i) duly and timely filed with the appropriate Taxing Authorities all Tax Returns required to be filed by or with them in respect to the Company or of any of its Subsidiaries have been timely filed (taking into account any applicable extensions)Taxes, all such which Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respects, (ii) duly and timely paid or remitted in full or withheld all Taxes that are due and payable by them, whether or not such Taxes were shown as due on any Tax Returns, (iii) established reserves in accordance with GAAP for the payment or remittance of all material Taxes due for all periods or portions thereof ending through the date hereof, and payable (whether or not shown on any Tax Returniv) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all laws applicable to the payment, remittance and withholding of Taxes and related reporting requirements have timely withheld and paid over to the respective proper Taxing Authorities all amounts required to be so withheld and paid over.
(b) There (i) is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or, to the knowledge of the Company, threatened against or with respect to the Company or any Company Subsidiary in respect of any Taxes or Tax Returns, and (ii) are no requests for rulings or determinations in respect of any Taxes or Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such TaxesTaxes or Tax Returns.
(c) There are The federal income Tax Returns of the Company and the Company Subsidiaries have never been examined by the Internal Revenue Service (or the applicable statutes of limitation for the assessment of federal income Taxes for such periods have expired) for any period, and no Liens for material deficiencies were asserted as a result of such or any other examinations that have not been resolved and fully paid. Neither the Company nor any of the Company Subsidiaries has granted any requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets with respect to any Tax Returns of the Company or any of its the Company Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax claim has been asserted made and, to the knowledge of the Company, no claim has been threatened by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any a Company Subsidiary, as the case may be, does not file Tax Returns in respect of its Subsidiaries a particular type of Tax or pay or remit such type of Tax that remains unresolved the Company or unpaida Company Subsidiary is required to file such Tax Returns or pay or remit such type of Tax.
(e) There is no material Tax audit The Merger will not trigger any income or other examination gain to the Company or any Company Subsidiary for federal income tax purposes (i) that was previously deferred pursuant to the regulations issued under Section 1502 of the Code or (ii) under Section 355(e) of the Code in respect of a distribution by the Company or any Company Subsidiary occurring prior to the Closing.
(f) None of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company Subsidiaries has been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any of its Subsidiaries been notified in writing of any request similar affiliated or threat consolidated group for such an audit tax purposes under state, local or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement foreign law (other than a group the common parent of which is the Company), or has any such agreement solely between liability for the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its the Company Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or law, as a transferee or successor successor, by contract or by Contract otherwise.
(other than customary commercial Contracts g) There are no material adjustments under Section 481 of the Code (or Contracts entered into in the ordinary course similar or analogous provision of businessstate, local or foreign law) not primarily related for income tax purposes applicable to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is required to be made by the Company or any of its the Company Subsidiaries.
(h) The Company is not, and has not been during the five-year period ending on the date hereof, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code.
(i) Within There are no Liens on any of the past three (3) years, no written claim has been made by any Governmental Authority where assets or properties of the Company or any of its Subsidiaries does not file Tax Returns Company Subsidiary that it is arose in connection with any failure (or may be subject alleged failure) to taxation in that jurisdictionpay or remit any Tax.
(j) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations §1.6011-4(b)(2)4(c)(3)(i)(A) or failed to report any “reportable transaction.”
(k) The Except as set forth in Section 3.13(k) of the Company has Disclosure Letter, the Company is not beencurrently subject to any limitation on the use of net operating losses, is not, and immediately prior capital losses or other tax attributes pursuant to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) section 382 or 383 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Audible Inc), Merger Agreement (Amazon Com Inc)
Taxes. (ai) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensions), all and each such Tax Returns (taking into account all amendments thereto) are true, Return is true correct and complete in all material respects, and all . All material Taxes owed by the Company or any of its Subsidiaries, or for which the Company or any of its Subsidiaries may be liable, that are or have become due and payable (whether or not shown on any Tax Return) have been paid.
(b) The paid in full. All material Tax withholding and deposit requirements imposed on or with respect to the Company and each or any of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) satisfied. There are no Liens for Taxes material Encumbrances (other than Permitted LiensEncumbrances) upon on any of the property or assets of the Company or any of its SubsidiariesSubsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax.
(dii) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority There are no pending claims against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is for any material Taxes, and no material Tax audit assessment, deficiency, or other examination adjustment has been asserted, proposed or, to the knowledge of the Company or any of its Subsidiaries presently in progress Company, threatened with respect to any material Taxes, nor has the Company Taxes or any Tax Returns of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither . No Tax audits or administrative or judicial proceedings are being conducted, pending or, to the Company nor any knowledge of its Subsidiaries has made a request for or entered into a closing agreementthe Company, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority threatened with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no . No written claim has ever been made by any Governmental Authority an authority in a jurisdiction where the Company or any of its Subsidiaries Subsidiaries, as applicable, does not file Tax Returns or pay Taxes that it the Company or any such Subsidiary is or may be subject to taxation in that jurisdiction.
(jiii) There is not in force any waiver or agreement for any extension of time for the assessment or payment of any material Tax of or with respect to the Company or any of its Subsidiaries.
(iv) The Tax Returns of the Company and its Subsidiaries through the Tax year ended December 31, 2009, have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under applicable Law, after giving effect to extensions or waivers, has expired.
(v) Schedule 3.1(l) of the Company Disclosure Schedule contains a list of all jurisdictions (whether foreign or domestic) in which the Company or any of its Subsidiaries currently files Tax Returns. The Company has made available to Parent true, correct and complete copies of all income Tax Returns, franchise Tax Returns, and other material Tax Returns filed by the Company or any of its Subsidiaries during the past three years.
(vi) Neither the Company nor any of its Subsidiaries has participated 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 (1) change in a “listed transaction” within the meaning method of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately accounting made prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of under Section 368(a)(2)(F481(c) of the Code.
Code (lor any corresponding or similar provision of applicable Law relating to Taxes), or (2) Except “closing agreement” as contemplated by this Agreement and described in Section 7121 of the Transactions contemplated hereby, neither the Company nor Code (or any corresponding or similar provision of its Subsidiaries has taken any action or agreed applicable Law relating to take any action, nor Taxes) executed prior to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing.
Appears in 2 contracts
Samples: Merger Agreement (Energy Xxi (Bermuda) LTD), Merger Agreement (Epl Oil & Gas, Inc.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kl) The Company has not been, is not, and immediately prior to the Share Exchange Closing Amalgamation Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(lm) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Business Combination Agreement (PropertyGuru Group LTD), Business Combination Agreement (Bridgetown 2 Holdings LTD)
Taxes. (a) All material Tax Returns required by Applicable Law to be filed by with any Taxing Authority by, or with respect to on behalf of, the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)when due in accordance with all Applicable Law, and all such Tax Returns (taking into account all amendments thereto) are trueare, correct or will be at the time of filing, true and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have has paid (or has had paid on its behalf) to the appropriate Taxing Authority all Taxes due and payable, or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with GAAP an adequate accrual for all Taxes through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books. The Company and each of its Subsidiaries has withheld from amounts owing each payment or deemed payment made to any employeeits past or present employees, creditor officers, directors and independent contractors, suppliers, creditors, shareholders or other Person third parties all material Taxes required by applicable Law to be withheldwithheld and has, within the time and in the manner required by Applicable Law, paid over such withheld amounts to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTaxing Authorities.
(c) Full copies of all income and franchise and other material Tax Returns specifically requested in writing by Parent, as filed prior to the date hereof by or on behalf of the Company and its Subsidiaries for each reporting period ending on or after December 31, 2001, and any amendments thereto, have been made available to Parent and full copies of any such filing made subsequent to the date hereof and prior to the Closing will be made available to Parent.
(d) Neither the Company nor any of its Subsidiaries is currently a party to any pending examination, audit, action, administrative or judicial proceeding, proposed adjustment or assessed deficiency relating to Taxes nor, to the Knowledge of the Company, has any examination, audit, action, proceeding, proposed adjustment or assessed deficiency been threatened by any Governmental Authority (domestic or foreign) (including the Investment Center with respect to Company’s status as an “Approved Enterprise” under Israel’s Law for the Encouragement of Capital Investment, 1959). There are no Liens for matters relating to material Taxes (other than Permitted Liens) upon the property or assets of under discussion between any Taxing Authority and the Company or any of its Subsidiaries.
(de) No claimTo the Knowledge of the Company, assessmentthe Company qualifies as an Industrial Company according to the meaning of that term in the Law for the Encouragement of Industry (Taxes), deficiency or proposed adjustment 1969, and the Company believes that after any applicable Tax holiday, Section 47(A1) of the Law Encouragement of Capital Investment, 1959 (the “Investment Law”) applies to the Company, considering the level of foreign investment in the Company. The Company believes that its current level of foreign investment for any material amount purposes of Tax the Investment Law is at least 80%.
(f) To the Knowledge of the Company, there has been asserted in writing or assessed by no written indication from any Governmental Authority against that the consummation of the Merger would adversely affect the ability of the Company to setoff for Israeli Tax purposes in the future any and all losses accumulated by it as of the Closing Date. Except for the OCS Approval and the Investment Center Approval, there are no consents or approvals of any Governmental Authority required prior to the consummation of the Merger in order to preserve the entitlement of the Surviving Company or its Subsidiaries to any Israeli Tax incentive, subsidy or benefit under Israeli Law.
(g) The Company and its Subsidiaries are not subject to any restrictions or limitations pursuant to Part E2 of the Israeli Income Tax Ordinance.
(h) No written claim that could give rise to material Taxes has been made in a jurisdiction in which the Company or any of its Subsidiaries does not file Returns, that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect may be subject to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariestaxation on that jurisdiction.
(fi) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with executed any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change waiver of any method statute of accounting with respect to any Taxes.
(g) Neither limitations on or extensions of the Company nor any of its Subsidiaries is a party to any Tax indemnification period for the assessment or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes collection of any other Person material Tax, which period for assessment or collection (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 after giving effect to such waiver or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (iiextension) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionyet expired.
(j) Neither the Company nor any of its Subsidiaries Subsidiaries:
(i) has participated ever been a member of an affiliated group filing a consolidated Tax Return, except for the affiliated group, the parent of which is the Company; (ii) is a party to any Tax sharing or Tax allocation agreement, arrangement or understanding (other than customary tax indemnifications contained in a “listed transaction” within credit or other commercial agreements the meaning primary purpose of which agreements does not relate to Taxes); or (iii) is liable for the Taxes of any other Person under United States Treasury Regulation 1.6011Section 1.1502-4(b)(26 (or any similar provision of state, local, Israeli or other foreign law), as a transferee or successor, by contract or otherwise, except for liability created as a result of being a member of the affiliated group, the parent of which is the Company.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action constituted either a “distributing corporation” or agreed a “controlled corporation” in a distribution of stock intended to take any action, nor qualify for tax-free treatment under Section 355 of the Code in the two years prior to the knowledge date of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Powerdsine LTD), Merger Agreement (Microsemi Corp)
Taxes. (a) All For the purposes of this Agreement, "Tax" or "Taxes" refers to any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
(b) Company and each of its subsidiaries have timely filed all material Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to Taxes required to be filed by Company and each of its subsidiaries with any Tax authority. Such returns are true and correct in all material respects and have been completed in accordance with applicable Law, and Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(c) Company and each of its subsidiaries has withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld.
(d) Neither Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Company or any of its subsidiaries, nor has Company or any of its subsidiaries executed any unexpired waiver or extension of any statute of limitations on or extending the period for the assessment or collection of any Tax, nor has any such waiver or extension been requested from the Company or any of its subsidiaries other than an extension resulting from the filing of a Tax Return after its due date in the ordinary course of business.
(e) No audit or other examination of any Return of Company or any of its subsidiaries by any Tax authority is presently in progress, nor has Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(f) No adjustment relating to any Returns filed by Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to Company or any of its subsidiaries or any representative thereof.
(g) Neither Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on Company balance sheet dated June 30, 2001 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Company, other than any liability for unpaid Taxes that may have accrued since June 30, 2001 in connection with the operation of the business of Company and its subsidiaries in the ordinary course.
(h) There is no contract, agreement, plan or arrangement to which Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee or any director of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible by reason of Sections 280G or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(i) Neither Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(j) Except as between Company and its current subsidiaries, neither Company nor any of its subsidiaries is, or has ever been (i) a member of an affiliated group within the meaning of Section 1504(a) of the Code filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (ii) a party to or bound by any tax indemnity agreement, tax sharing agreement, tax allocation agreement or similar Contract (such agreements and Contracts, "Tax Indemnity Agreements") and neither Company nor any of its subsidiaries has or, by reason of the consummation of the transactions contemplated under this Agreement, will have any liability or obligation under any Tax Indemnity Agreement, (iii) liable for the Taxes of any person (other than Company or any of its subsidiaries)by reason of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, or otherwise, or (iv) party to any joint venture, partnership or, to the knowledge of Company, other agreement that could be treated as a partnership for Tax purposes.
(k) No claim or action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other governmental body or any arbitrator or arbitration panel is pending or, to the Company's knowledge, has been threatened against or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account subsidiaries in respect of any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidTax.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fl) Neither the Company nor any of its Subsidiaries subsidiaries has made been or will be required to include any material adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 of the Code or any comparable provision under any Tax laws as a request for result of transactions or entered into a closing agreementevents occurring, private letter rulingor accounting methods employed, advance tax ruling or similar agreement with any Governmental Authority with respect prior to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesClosing.
(gm) Neither the Company nor any of its Subsidiaries is subsidiaries has constituted either a party to any Tax indemnification "distributing corporation" or Tax sharing or similar Tax agreement a "controlled corporation" (other than any as such agreement solely between terms are defined in Section 355(a) of the Company and its existing Subsidiaries and customary commercial Contracts Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (or Contracts entered into x) in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately two years prior to the Share Exchange Closing will not bedate of this Agreement, treated as an “investment company” or (y) in a distribution that could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 368(a)(2)(F355(e) of the Code) in conjunction with the Merger.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Sage Inc/Ca), Merger Agreement (Genesis Microchip Inc)
Taxes. Except as has not had, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Tax Returns required by Applicable Law to be filed with any Taxing Authority by the Company or any of its Subsidiaries have been filed when due (giving effect to all extensions) in accordance with all Applicable Law, and all Tax Returns that have been filed with a Taxing Authority are true, correct and complete in all respects.
(b) Each of the Company and its Subsidiaries has paid (or has had paid on its behalf) all Taxes due and owing (whether or not shown on any Tax Return), except for Taxes being contested in good faith pursuant to appropriate procedures for which an adequate reserve has been established on the books and records of the Company or its applicable Subsidiary.
(c) Each of the Company and its Subsidiaries has duly and timely withheld all Taxes required to be withheld, and such withheld Taxes have been either duly and timely paid to the proper Taxing Authority or properly set aside in accounts for payment when due.
(d) There is no audit, claim, action, suit, proceeding or other investigation pending or, to the Company’s knowledge, threatened in writing against or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respectsrespect of Taxes, and all material Taxes due and payable (whether there is no Tax deficiency outstanding, proposed or not shown on assessed against the Company or any Tax Return) have been paidSubsidiary of the Company.
(be) The Neither the Company and each nor any of its Subsidiaries have withheld from amounts owing to has waived any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements statute of limitations with respect to such TaxesTaxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which waiver is still in effect, and no power of attorney that has been granted by the Company or any Subsidiary of the Company with respect to a Tax matter is currently in effect.
(cf) During the two year period ending on the date of this Agreement, the Company was not a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a transaction intended to qualify for tax-free treatment under Section 355 of the Code.
(g) There are no Liens for Taxes (other than Permitted Liens) upon on any of the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount Subsidiaries and no circumstances as a result of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than which any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Liens could be imposed.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group one of which the Company or any of its Subsidiaries was the common parent parent, (ii) is party to any agreement relating to the apportionment, sharing, assignment or allocation of which was Taxes (other than (x) an agreement solely between or is among the Company and/or one or more of its Subsidiaries or (y) ordinary course commercial agreements that are not primarily related to Taxes), (iii) has entered into a closing agreement pursuant to Section 7121 of the Code, or any similar provision of state, local or non-U.S. law or (iv) has any liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. law) or as a transferee, successor by Contract (other than (x) a Contract solely between or among the Company and/or one or more of its Subsidiaries or (y) leases or loan agreements that are not primarily related to Taxes) or otherwise.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file Tax Returns that it is will be required to include any item of income in, or may be subject exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (1) any change in method of accounting occurring prior to taxation the Closing pursuant to Section 481 of the Code (or any similar provision of state, local, or foreign Applicable Law), (2) any installment sale or open transaction made prior to Closing, (3) any intercompany transaction or excess loss account described in that jurisdictionTreasury Regulations under Section 1502 of the Code (or any similar provision of state, provincial, local or foreign Applicable Law) entered into prior to or existing as of immediately prior to the Closing, (4) any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing, (5) any deferred revenue or prepaid amount received or paid prior to the Closing outside of the ordinary course of business, or (6) any election pursuant to Section 108(i) of the Code.
(j) Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) The No jurisdiction in which the Company or any of its Subsidiaries does not file a Tax Return has asserted in writing a claim that has not been, is not, and immediately prior been resolved to the Share Exchange Closing will not be, treated as an “investment company” within effect that the meaning of Section 368(a)(2)(F) of the CodeCompany or such Subsidiary is subject to Taxes or required to file Tax Returns in such jurisdiction.
(l) Except Neither the Company nor any Subsidiary of the Company has applied for any relief under, taken advantage of, deferred the payment of Tax or the recognition of taxable income or gain as contemplated by this Agreement and the Transactions contemplated herebyresult of, neither or is otherwise subject to any provision of a Pandemic Response Law.
(m) Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any actionaction or knows of any fact, nor to the knowledge of the Company agreement, plan or any of its Subsidiaries are there any facts or circumstances, other circumstance that could is reasonably be expected likely (i) to prevent the Transactions Merger from qualifying for the Intended Tax Treatment, (ii) to cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code, or (iii) to prevent or impede the Company from being able to deliver the executed Company Tax Certificate at Closing. As of the date of this Agreement, the Company believes it will be able to provide the Company Tax Certificate at the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Chiasma, Inc), Merger Agreement (Amryt Pharma PLC)
Taxes. (a) All The Company and its Subsidiaries (i) have duly filed all income and all other material Tax Returns required to be have been filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
, and all such Tax Returns are true and correct in all material respects; (dii) No claim, assessment, deficiency or proposed adjustment have within the time and manner prescribed by applicable Law paid all Taxes required to be paid by each of them; (iii) as of the date of this Agreement have adequate accruals and reserves on the financial statements included in the Company SEC Documents for Taxes in accordance with GAAP; and (iv) as of the date of this Agreement have not received written notice of any deficiencies for any material amount of Tax has been asserted in writing or assessed by from any Governmental Authority Taxing Authority, against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of for which there are not adequate reserves on the financial statements included in the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) SEC Documents. Neither the Company nor any of its Subsidiaries has made a request for is the subject of any pending or entered into a closing agreementcurrently ongoing Tax audit, private letter ruling, advance tax ruling Action or similar agreement with any Governmental Authority other proceeding with respect to TaxesTaxes nor has any Tax audit, Action or other proceeding with respect to Taxes been proposed against any of them in writing. Neither the Company nor any of its Subsidiaries has made a change waived any statute of limitations in respect of Taxes or agreed to any method extension of accounting time with respect to a Tax assessment or deficiency. There are no Liens with respect to Taxes upon any Taxes.
of the properties or assets, real or personal, tangible or intangible of the Company or any of its Subsidiaries (g) other than Permitted Liens). No claim has ever been made in writing by a Taxing Authority of a jurisdiction where the Company or one of its Subsidiaries has not filed Tax Returns claiming that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction. Neither the Company nor any of its Subsidiaries is a party to has any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between liability for the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person another person (other than the Company and its Subsidiaries) under pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxesnon-U.S. law) or otherwise) by reason of (iii) has ever been being a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group of which the common parent of which was or is the Company or otherwise as a transferee or successor or (ii) being party to any Tax sharing or Tax indemnification agreement or other similar agreement (other than customary Tax indemnification provisions in commercial agreements or arrangements, in each case not primarily relating to Taxes). Neither the Company nor any of its Subsidiariesthe Subsidiaries will be required to include any material item of income in, or to exclude any material item of deductions from, taxable income from any taxable period (or portion thereof) ending after the Merger Closing as a result of any (i) change in method of accounting or (ii) closing agreement.
(ib) Within the past three (3) years, no written claim has been made by any Governmental Authority where Each of the Company and its Subsidiaries has timely and duly withheld and paid all Taxes to the appropriate Taxing Authority required to have been withheld and paid by them in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. The Company has timely and duly collected and remitted to the appropriate Taxing Authority all Taxes required to be collected and remitted by it.
(c) Neither the Company nor any of its Subsidiaries does was a “distributing corporation” or “controlled corporation” in a transaction intended to qualify under Section 355 of the Code within the past two years. The Company is not file Tax Returns that it is or may be subject to taxation and 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 set forth in that jurisdictionSection 897(c)(1)(A)(ii) of the Code.
(jd) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2)4.
(ke) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning For purposes of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.Agreement:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Taxes. (a) All material Tax Returns The Company and each of its subsidiaries have timely filed or caused to be filed all federal, state, local, foreign and other returns, estimates, information statements and reports ("Returns") relating to Taxes (as defined in Section 3.7(r)) required to be filed by or with respect to on behalf of the Company or any and each of its Subsidiaries have been timely filed (taking into account subsidiaries with any applicable extensions), all such Tax authority. Such Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and the Company and each of its subsidiaries have timely paid all material Taxes due and payable (due, whether or not shown on any Tax Return) such Taxes have been paidshown to be due on such Returns. Neither the Company nor any of its subsidiaries has requested an extension of time within which to file any Return.
(b) The Company and each of its Subsidiaries subsidiaries have withheld from amounts owing with respect to any employeeits employees and other persons all federal and state income Taxes, creditor or Taxes pursuant to the Federal Insurance Contribution Act ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are The Company and its subsidiaries have not executed any unexpired waiver of any statute of limitations on or extended the period for the assessment or collection of any Tax, and no Liens for Taxes power of attorney with respect to Tax matters has been executed or filed with any Tax authority.
(d) No audit or other than Permitted Liens) upon the property or assets examination of any Return of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed subsidiaries by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There Tax authority is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for examination that is reasonably likely to result in any waivers or extensions of any statute of limitations currently in effect with respect adjustment.
(e) No adjustment relating to any material Taxes of Returns filed by the Company or any of its Subsidiariessubsidiaries has been proposed formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(f) Neither The unpaid Taxes of the Company nor any and its subsidiaries did not, as of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the date of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect Balance Sheet, exceed the reserve for actual Taxes (as opposed to any Taxesreserve for deferred Taxes established to reflect timing differences between book and Tax income) as shown on the Company Balance Sheet, and will not exceed such reserve as adjusted for the passage of time through the Closing Date in accordance with reasonable past custom and practice of the Company.
(g) Neither Assuming no significant appreciation in the value of Parent Common Stock from the date hereof, there is no agreement, plan or arrangement to which the Company nor or any of its Subsidiaries subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between party, including this Agreement and the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts agreements entered into in connection with this Agreement, that, individually or collectively, would give rise to the ordinary course payment of businessany amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) not primarily related to Taxes)of the Code, or which would impose a withholding Tax obligation on Parent, the Company or any of its subsidiaries or the Surviving Corporation for amounts described in Section 4999 of the Code.
(h) Neither the Company nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (if) is liable for Taxes asset (as defined in Section 341(f)(4) of any other Person (other than the Company and its SubsidiariesCode) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owned by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessubsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does subsidiaries is party to or has any obligation under any Tax-sharing, Tax indemnity or Tax allocation agreement or arrangement (including but not file limited to any advance pricing agreement, closing agreement or other agreement relating to Taxes with a Tax Returns that it is or may be subject to taxation in that jurisdictionauthority).
(j) Neither the Company nor any of its Subsidiaries subsidiaries has participated been or will be required (either as a result of the transactions contemplated by this Agreement or otherwise) to include in taxable income attributable to, or that accrued in, a prior taxable period but was not recognized in a “listed transaction” within prior taxable period as a result of the meaning installment method of Treasury Regulation 1.6011-4(b)(2)accounting, the completed contract method of accounting, the cash method of accounting or under Section 481 of the Code or any comparable provision of any other Tax law or for any other reason.
(k) The Neither the Company nor any of its subsidiaries has not been, is not, and immediately prior to been distributed in a transaction qualifying under Section 355 of the Share Exchange Closing will not be, treated as an “investment company” Code within the meaning last two (2) years, nor has the Company or any of its subsidiaries distributed any corporation in a transaction qualifying under Section 368(a)(2)(F) 355 of the CodeCode within the last two years.
(l) There are no outstanding rulings of, or requests for rulings with, any Tax authority addressed to the Company or any of its subsidiaries that are, or if issued would be, binding on the Company or any of its subsidiaries.
(m) Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated federal income tax return (other than a group the common parent of which was the Company), and neither the Company nor any of its subsidiaries has any liability for the Taxes of any person under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign Tax law), as a transferee or successor, by contract, or otherwise.
(n) Except as contemplated by this Agreement and set forth on Section 3.7(n) of the Transactions contemplated herebyCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries subsidiaries has, or has taken had, a permanent establishment in (or would otherwise be treated as having engaged in business in), any action or agreed foreign country.
(o) None of the shares of Company Common Stock outstanding are subject to take a "substantial risk of forfeiture" within the meaning of Section 83 of the Code.
(p) There are no encumbrances for Taxes (except for encumbrances for Taxes not yet due and payable) on any action, nor to of the knowledge assets of the Company or any of its Subsidiaries are there subsidiaries.
(q) Except as set forth on Section 3.7(n) of the Company Disclosure Schedule, neither the Company nor any facts of its subsidiaries owns or circumstanceshas owned, directly, indirectly or by attribution, any interest in an entity that would be treated as a "passive foreign investment company" within the meaning of Section 1297 of the Code. Neither the Company nor any of its subsidiaries is a party to any joint venture, partnerships, limited liability company or other arrangement which could reasonably be expected treated as a partnership for Tax purposes.
(r) For the purposes of this Agreement, "Tax" or "Taxes" refers to prevent (i) any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts, (ii) any liability for payment of any amounts of the Transactions from qualifying type described in clause (i) as a result of being a member of an affiliated consolidated, combined or unitary group, and (iii) any liability for amounts of the Intended Tax Treatmenttype described in clauses (i) and (ii) as a result of any express or implied obligation to indemnify another person or as a result of any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
Taxes. (a) All material Tax Returns required to be filed Taxes payable by or with respect to the imposed against any Acquired Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material fully paid other than Taxes not yet due and payable (whether or not shown payable. Each Acquired Company has duly complied with all withholding Tax and Tax deposit requirements imposed on any Tax Return) have been paidthem and their respective assets.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts All Tax Returns that are required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements filed for, by, on behalf of or with respect to each Acquired Company have been duly and timely filed with the appropriate Governmental Authority. All such TaxesTax Returns are correct and complete, except for such failures to be so correct and complete, individually or in the aggregate, that would not reasonably be expected to have a Material Adverse Effect on the Acquired Companies.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(di) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Acquired Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax under audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with by any Governmental Authority with respect to Taxes. Neither the , (ii) there are no Claims or Proceedings now pending or, to Seller’s Knowledge, threatened against any Acquired Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor Tax or any of its Subsidiaries is a party matters under discussion with any Governmental Authority relating to any Tax, (iii) there are no Claims for any additional Tax indemnification and no assessment, deficiency or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim adjustment has been made asserted by any Governmental Authority against any Acquired Company, and (iv) to Seller’s Knowledge, no claim has ever been made by a Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does Acquired Companies do not file Tax Returns that it is or may be subject to taxation in that jurisdiction. There are no outstanding Contracts or waivers extending the statutory period of limitation applicable to (x) the filing of any Tax Return by or with respect to, or (y) any claim for, or the period for the collection or assessment of, Taxes due from or with respect to, any Acquired Company for any taxable period.
(jd) Neither No Acquired Company has agreed to make any material adjustment pursuant to Section 481(a) of the Code (or any similar provision of foreign, state or local law or any predecessor provision) by reason of any change in any accounting method, and there is no application pending with any Governmental Authority requesting permission for any changes in any accounting method of any Acquired Company.
(e) No Acquired Company nor will be required to include in any of its Subsidiaries has participated period ending after the Closing Date any income that accrued in a “listed transaction” within prior period but was not recognized in any prior period as a result of the meaning installment method of Treasury Regulation 1.6011accounting, the completed contract method of accounting, the long-4(b)(2term contract method of accounting or the cash method of accounting.
(f) None of the Acquired Companies (i) has been a member of an affiliated, consolidated, combined, unitary or similar group filing a consolidated federal income Tax Return, or (ii) has any liability for the Taxes of any Person (other than another Acquired Company).
(kg) The No Acquired Company is a party to, is bound by, or has any obligation under, any Tax sharing agreement, Tax allocation agreement or similar Contract.
(h) No Acquired Company has not beenexecuted or entered into with the IRS, or any other Governmental Authority, a closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local, foreign or other income tax law, which will require any increase in taxable income or alternative minimum taxable income, or any reduction in Tax deductions or Tax credits for, any Acquired Company for any taxable period ending after the Closing Date.
(i) No Acquired Company has made any payments, is notobligated to make any payments, and immediately prior or is a party to the Share Exchange Closing will any agreement that under certain circumstances could obligate it to make any payments that would not be, treated as an “investment company” within the meaning of be deductible under Section 368(a)(2)(F) 280G of the Code.
(lj) Except as contemplated by this Agreement From and the Transactions contemplated herebyat all times since their respective dates of inception, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge each of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying Acquired Companies has been classified as a disregarded entity for the Intended U.S. federal income tax purposes under Treasury Regulation § 301.7701-3 and all Tax TreatmentReturns have been prepared consistently therewith.
Appears in 2 contracts
Samples: Second Contribution Agreement (Natural Resource Partners Lp), Contribution Agreement (Natural Resource Partners Lp)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) timely filed all income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property material federal, state, local or assets foreign audits or examinations of any Tax Return of the Company or its Subsidiaries ongoing or pending and neither the Company nor any Subsidiary has received written notice of its Subsidiaries.
(d) any such material audit or examination. No claim, assessment, deficiency or proposed adjustment claim for any material amount of Tax unpaid Taxes has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesby a Governmental Entity, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) claim that has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written resolved. No claim has been made in writing by any a Governmental Authority Entity in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(jc) The Company and each of its Subsidiaries have withheld all Taxes required to have been withheld from payments made to its employees, independent contractors, creditors, stockholders and other third parties and, to the extent required, such Taxes have been paid to the relevant Governmental Entity.
(d) There are no outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or material deficiencies against 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, except for any such agreements that (i) are solely between the Company and/or any of its Subsidiaries, (ii) will terminate as of the Closing, or (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes.
(f) There are no material Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Reports, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith and for which adequate reserves have been established on the Company Balance Sheet.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (A) is or has been in the past five (5) years a member of a group (other than a group the common parent of which is the Company or one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return, or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law, as a transferee or successor, or pursuant to any contractual obligation.
(i) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(j) The U.S. federal income tax entity classification of each Subsidiary of the Company not organized within the United States is set forth on Section 5.13(j) of the Company Disclosure Schedule.
(k) The Company has not beenand each of its Subsidiaries are in compliance in all material respects with all terms and conditions of any Tax exemption, is notTax holiday or other Tax reduction agreement or order (“Tax Incentive”), and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) consummation of the Code.
(l) Except as transactions contemplated by this Agreement will not have any adverse effect on the continued validity and the Transactions contemplated hereby, neither the Company nor effectiveness of any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended such Tax TreatmentIncentive.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
