Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof: (a) The Acquired Companies have filed with the appropriate Governmental Entities all Tax Returns that are required to be filed by them. All Taxes due and owing by the Acquired Companies (whether or not shown on such Tax Returns) have been paid. None of the Acquired Companies currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions that have been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax Return. (b) The Acquired Companies have withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Third Party. (c) There is no dispute concerning any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaid, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entity. (d) There are no agreements relating to the allocating or sharing of Taxes to which the Acquired Companies are a party other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to Taxes. (e) None of the Acquired Companies (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, other than the affiliated group of which the Company is the common parent or (ii) has any liability for the Taxes of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) as a transferee or successor, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes). (f) None of the Acquired Companies will be required to include any adjustment in taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of any: (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)). (g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)). (h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code. (i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law). (j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period. (k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Harmony Biosciences Holdings, Inc.)
Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies have Surviving Corporation shall prepare, or cause to be prepared, and file, or cause to be filed, on a timely basis all other Tax Returns of the Surviving Corporation that are filed with after the appropriate Governmental Entities all Closing Date (including, for the avoidance of doubt, any Tax Returns that are required were due but unfiled prior to be filed by themthe Closing Date). All Taxes due and owing by the Acquired Companies (whether or not shown on such Tax Returns) have been paidReturns shall be prepared in a manner consistent with prior practice, unless such prior practice is not in accordance with applicable Law. None of the Acquired Companies currently is the beneficiary of any extension of time within which to file The parties agree that any Tax Returns filed after the Closing Date shall elect the safe harbor election described in IRS Revenue Procedure 2011-29 with respect to any “success-based fee” described in Treasury Regulation Section 1.263(a)-5(f) relating to the Contemplated Transactions. The Surviving Corporation shall provide the Securityholders’ Representative with a draft copy of each such Tax Return other than customary that reflects any liability for Pre-Closing Taxes at least ten (10) Business Days prior to the filing of such Tax Return (taking into account permitted extensions that have been obtained consistent granted) for its review and comment and, with past practicerespect to each such Income Tax Return, shall make such changes to such Tax Return as the Securityholders’ Representative reasonably determines necessary or appropriate, but only to the extent that such changes (i) are determined, by a jointly selected arbiter from a nationally recognized independent public accounting firm, to constitute a position that is at least “more likely than not” to be sustained and (ii) impact the amount of Pre-Closing Taxes payable by the Securityholders. There All costs and expenses of the nationally recognized independent public accounting firm incurred in making the “more likely than not” determination shall be borne by the Securityholders. The Securityholders are no Encumbrances jointly and severally responsible for any liability for Pre-Closing Taxes shown as due on any Tax Returns filed pursuant to this Section 5.4(a) and, to the extent paid by the Surviving Corporation, the Surviving Corporation shall be entitled to be reimbursed from the Indemnity Escrow Amount for the amount of any Tax liabilities that are Pre-Closing Taxes that were unpaid as of the assets of the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted EncumbrancesClosing Date. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax Return.
(b) The Acquired Companies have withheld Surviving Corporation, the Securityholders’ Representative and paid Parent shall cooperate fully, as and to the appropriate Governmental Entity all Taxes required to have been withheld and paid extent reasonably requested by any party hereto, in connection with amounts paid (i) the filing of Tax Returns pursuant to this Article V, (ii) any other Tax Returns required to be filed in connection with the Contemplated Transactions (including, without limitation, required filings under Section 6043 or owing Section 6043A of the Code or the Treasury Regulations thereunder), and (iii) any Tax Contest. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any employeesuch Tax Return or Tax Contest and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Parent, independent contractorthe Surviving Corporation and the Securityholders’ Representative agree (x) to retain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, creditorto the extent notified by Parent, stockholderthe Surviving Corporation or the Securityholders’ Representative, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority, and (y) to give each other reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Third Party.so requests, the Surviving Corporation or the Securityholders’ Representative, as the case may be, shall allow the other to take possession of such books and records.
(c) There is no dispute concerning any All Transfer Taxes shall be borne by the Securityholders. The party responsible under applicable Law shall timely prepare all necessary Tax liability Returns with respect to all such Transfer Taxes and shall provide a draft copy of the Acquired Companies raised by any Governmental Entity in writing such Tax Returns and other documentation to Securityholders’ Representative at least ten (10) Business Days prior to the Acquired Companies that remains unpaiddue date for such Tax Returns for its review and comment and shall incorporate all comments made by Securityholders’ Representative. The party responsible under applicable Law shall timely file or cause to be filed all such Tax Returns, and none of Parent and the Acquired Companies has received written notice of any threatened audits or investigations relating Surviving Corporation shall reasonably cooperate with the Securityholders’ Representative as may be necessary to any Taxeseffectuate such filings. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entity.
(d) There are All Tax Sharing Agreements with respect to or involving the Company shall have been terminated no agreements relating to later than the allocating Closing Date and, after the Closing Date, the Surviving Corporation shall not be bound thereby or sharing of Taxes to which the Acquired Companies are a party other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to Taxes.have any liability thereunder.
(e) None Following the Closing, neither Parent nor the Surviving Corporation shall amend any previously filed Tax Return of the Acquired Companies (i) has been a member of an affiliated group of corporations within Company to the meaning of Section 1504 extent that such Tax Return relates to any Pre-Closing Tax Period without the prior written consent of the Code Securityholders’ Representative (which will not be unreasonably withheld, conditioned or within delayed). Parent shall, if the meaning Securityholders’ Representative requests and at the expense of the Securityholders’ Representative, cause the relevant entity to file for and obtain any similar provision of Law refunds or credits to which the Acquired Companies holders may be subjectentitled hereunder. Any refunds (including, other than for the affiliated group avoidance of which doubt, overpayments of estimated taxes) of Taxes of the Company is the common parent or (ii) has for any liability Pre-Closing Tax Period will be for the benefit of the Securityholders, and the Parent will forward such refunds, together with any interest thereon but less any expenses incurred in connection with obtaining such refund and any Taxes due with respect to such refund, as directed by Securityholders’ Representative within ten (10) days of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) as a transferee or successor, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes).receipt.
(f) None Notwithstanding any provision of this Agreement to the contrary, all Tax deductions and credits attributable to the expenses of the Acquired Companies Company relating to or arising from the Contemplated Transactions shall be allocated to the Pre-Closing Tax Period (and reported accordingly for Tax purposes) to the extent permitted by applicable Law. Any net operating loss or tax credit shall be carried back to the earliest taxable period permitted by Law, and no election will be required made for such net operating losses or tax credits to include any adjustment only be carried forward unless otherwise requested in taxable income for any Tax period (or portion thereof) ending after writing by the Closing Date as a result of any: (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).Securityholders’ Representative.
(g) None Notwithstanding anything herein to the contrary, Parent (and, after the Closing, the Surviving Corporation), shall be entitled to, (i) initiate, participate in and control any “voluntary disclosure” process or procedure sponsored by a particular Governmental Authority with respect to Taxes of the Acquired Companies have participated Company for any Pre-Closing Tax Period or Straddle Period (and any related process with respect to other Taxes that is required under applicable Law in order to participate in such voluntary disclosure process), (ii) approach on an anonymous basis and seek a resolution in a manner similar to the “listed transactionvoluntary disclosure” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None process or procedure for any jurisdiction that does not have a formal “voluntary disclosure” process or procedure with respect to Taxes of the Acquired Companies have been has beenCompany for any Pre-Closing Tax Period or Straddle Period (and any related process with respect to other Taxes that is required under applicable Law in order to participate in such process or procedure), at and (iii) make any timeremedial Tax filings with respect to any Pre-Closing Tax Period or Straddle Period, including, for the avoidance of doubt, any remedial Tax filings relating to sales and use Taxes or in any non-U.S. jurisdiction, that Parent reasonably determines to be appropriate (each, a “United States real property holding corporation” within Specified Proceeding”). For each Specified Proceeding, Parent (A) shall diligently prosecute such Specified Proceeding in good faith, (B) shall keep the meaning of Section 897(c)(2) Securityholders’ Representative reasonably informed of the Code.
status of developments with respect to such Specified Proceeding, (iC) All intercompany transactions between provide the Securityholders’ Representative with copies of all written materials related to such Specified Proceeding and among provide the Securityholders’ Representative with a draft of any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder filings or submissions with respect to such Specified Proceeding (and Parent shall incorporate any similar provision of applicable state, local, or non-U.S. Lawreasonable comments requested by the Securityholders’ Representative thereon), and (D) allow the Securityholders’ Representative to participate in all discussions and meetings with a Governmental Authority in connection with such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, PubSpecified Proceeding. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Ideanomics, Inc.)
Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies EVI and each of its Subsidiaries have timely filed with the appropriate Governmental Entities all Tax Returns that are required to be have been filed by themor with respect to EVI and each of its Subsidiaries, and all such Tax Returns are true, correct and complete. All EVI has made available to Parent all correct and complete copies of all income Tax Returns filed by, and all Tax examination reports and statements of deficiencies assessed against or agreed to by EVI for all periods beginning with the fiscal year ended December 31, 2020, and all other material Tax Returns for which the applicable statute of limitations has not yet expired. EVI and each of its Subsidiaries have timely paid all Taxes attributable to EVI or any of its Subsidiaries that were due and owing payable by the Acquired Companies (whether or not them as shown on such Tax Returns) , except with respect to matters contested in good faith and which have been paidadequately reserved against in accordance with GAAP.
(b) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the assessment of, any Taxes of EVI or any of its Subsidiaries, and no request for any such waiver or extension is pending or requested. None Neither EVI nor any of the Acquired Companies currently is the beneficiary of its Subsidiaries has filed any extension of time within which to file any Tax Return other than customary extensions Returns in respect of any fiscal year that have not since been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax Return.
(b) The Acquired Companies have withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Third Partyfiled.
(c) There are no audits, examinations, disputes or other proceedings with respect to Taxes of EVI or any of its Subsidiaries, and no such audit, examination, dispute or other proceeding is no dispute concerning pending or threatened by a Governmental Authority. Neither EVI nor any of its Subsidiaries has received any claim from any Governmental Authority in a jurisdiction where it does not file Tax liability Returns that EVI or any of the Acquired Companies raised its Subsidiaries is or may be subject to taxation by that jurisdiction. No deficiency or claim for Taxes against EVI or any of its Subsidiaries has been claimed, proposed or assessed by any Governmental Entity in writing Authority with respect to EVI, nor, to the Acquired Companies that remains unpaidKnowledge of EVI, has such a claim or deficiency been threatened against EVI or any of its Subsidiaries for any alleged deficiency in Taxes of EVI or any of its Subsidiaries. All deficiencies for Taxes asserted or assessed against EVI and none of its Subsidiaries have been fully and timely paid, settled or properly reserved for and reflected on the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental EntityEVI Financial Statements.
(d) There are no agreements relating Liens with respect to Taxes on the allocating assets or sharing business of Taxes to which the Acquired Companies are a party EVI or any of its Subsidiaries other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to TaxesPermitted Liens.
(e) None Neither EVI nor any of its Subsidiaries (1) is now, nor ever has been, a party to any agreement or arrangement relating to the Acquired Companies sharing, allocation or indemnification of Taxes or net operating losses, Tax credits or other Tax benefits, and (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, other than the affiliated group of which the Company is the common parent or (ii2) has any liability Liability for the Taxes of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 § 1.1502–6 (or any similar provision of state, local or foreign Law) ), as a transferee or successor, or by contract (other than or otherwise. Neither EVI nor any of its Subsidiaries has ever been a contract entered into in the ordinary course member of business a principal purposes of which is not related to Taxes)group filing consolidated Tax Returns for United States federal income Tax purposes.
(f) EVI and each of its Subsidiaries has duly and timely withheld any amounts owed with respect to employees, independent contractors, creditors, stockholders, foreign corporations, nonresident aliens, foreign corporations, third parties, and United States real property interests, and has duly and timely paid proper and accurate amounts to the appropriate Governmental Authority for all periods through the date hereof in compliance with all Tax withholding provisions of applicable federal, state, local and foreign Laws (including, without limitation, income, social security, and employment Tax withholding for all types of compensation).
(g) Neither EVI nor any of its Subsidiaries has constituted either 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 for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement (or will constitute such a corporation in the two (2) years prior to the Closing Date) or (ii) in a distribution that otherwise constitutes part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) that includes the EVI Merger.
(h) Neither EVI nor any of its Subsidiaries is aware of the existence of any fact or circumstance, or has taken or agreed to take any action, that would reasonably be expected to prevent or impede the EVI Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(i) Neither EVI 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).
(j) Neither EVI nor any of its Subsidiaries has entered into a closing agreement under Section 7121 of the Code or any similar provision of state, local or foreign Laws, or is subject to any binding determination of the IRS or any comparable ruling of any Governmental Authority.
(k) There is no contract, plan or arrangement covering any Person that would give rise to the payment of any amount that would not be deductible by reason of Section 162(m) of the Code.
(l) Neither EVI nor any of its Subsidiaries has participated, within the meaning of Treasury Regulations § 1.6011–4(c), in any “reportable transaction” within the meaning of Section 6011 of the Code. EVI has disclosed on its Tax Returns all positions taken therein that could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code (or any similar provision of state, local or foreign Laws).
(m) Neither EVI nor any of its Subsidiaries 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. Neither EVI nor any of its Subsidiaries is a “foreign person” within the meaning of Section 1445(f) of the Code.
(n) None of the Acquired Companies will be EVI nor any of its Subsidiaries is required to include any adjustment in item of income in, or exclude any item of deduction or loss from, taxable income for any Tax taxable period (or portion thereof) ending after the Closing Date as a result of any: any (i) any change in accounting method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A 481(a) of the Code (or any predecessor provision or any similar provision of applicable state, provincial, local or foreign Tax Law); ) for a taxable period ending on or before the Closing Date, (ii) any prepaid amount received on or prior to the Closing Date, (iii) “closing agreement agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, localprovincial, local or non-U.S. foreign Tax Law) executed on or prior to the Closing; Closing Date, or (iiiiv) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law))Date.
(go) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(i) All intercompany transactions between and among Neither EVI nor any of its Subsidiaries has extended, deferred or delayed the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage payment of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, Taxes under the CARES Act or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act otherwise as a result of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing periodCOVID-19.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Xxx Matters.
(a) Except as set forth on in Section 4.12 3.20(a) of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies have Company has duly and timely filed with the appropriate Governmental Entities all Tax Returns that are required to be filed by them, and all such Tax Returns are true, complete and correct in all material respects. All The Company has timely paid all Taxes due and owing by the Acquired Companies (whether or not shown due on such any Tax Returns) have been paidReturn). None of the Acquired Companies The Company is not currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions that have been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose in connection with any failure to pay any TaxReturn, other than Permitted Encumbrances. All Taxes automatic extensions of time not requiring the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or consent of any Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax ReturnAuthority.
(b) The Acquired Companies have Company has complied with all applicable Laws relating to the payment and withholding of Taxes and has, within the time and in the manner prescribed by applicable Laws, withheld and paid over to the appropriate proper Governmental Entity Authority all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdermember, stockholder or other Third Party.third party.
(c) There The Company is no dispute concerning not a party to or bound by any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaidSharing Agreement, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entity.
(d) There are no agreements relating to the allocating or sharing of Taxes to which the Acquired Companies are a party other than customary agreements entered into in an ordinary commercial agreement the ordinary course of business, a principal primary purpose of which is not related the indemnification, sharing or allocation of Taxes. There are no Liens on any of the assets of the Company with respect to Taxes., other than Permitted Liens.
(d) No Governmental Authority is conducting or has threatened in writing to conduct an audit or administrative or judicial proceeding with respect to Taxes or any Tax Returns of the Company. No extension or waiver of the statute of limitations with respect to Taxes or any Tax Return has been granted by the Company which remains in effect. All Tax deficiencies which have been proposed, asserted or assessed against the Company have been fully paid or finally settled. The Company has not received a written notice of a claim by any Governmental Authority in any jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction.
(e) None of The Company has not received or requested any ruling, closing agreement, transfer pricing agreement or similar agreement from any Governmental Authority with respect to any Tax which will have any effect after the Acquired Companies Closing.
(if) The Company has never been a member of included in an affiliated group of corporations within the meaning of (as defined in Section 1504 of the Code or within the meaning of any similar group defined under a similar provision of Law to which the Acquired Companies may be subjectstate, other than the affiliated group of which the local, or foreign Law).
(g) The Company is the common parent or (ii) has any no liability for the Taxes of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) ), as a transferee or successorsuccessor or as a result of similar liability, operation of Law, by Contract (including any Tax Sharing Agreement) or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes)otherwise.
(fh) None The Company has not participated in a listed transaction within the meaning of Section 1.6011-4 or Section 1.6011-4T of the Acquired Companies Treasury Regulations.
(i) No Person has been treated as an independent contractor of the Company for Tax purposes who should have been treated as an employee for such purposes.
(j) The Capital Stock is not subject to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code.
(k) The Company is not a party to any “gain recognition agreements” as such term is used in the Treasury Regulations promulgated under Code Section 367.
(l) There are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Company is a party and that could be treated as a partnership for federal income tax purposes.
(m) The unpaid Taxes of the Company (i) did not, as of the Balance Sheet Date, exceed the accrued Liability for Taxes (rather than any accrued Liability for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Unaudited Financial Statements (rather than in any notes thereto) and (ii) will not exceed that accrued Liability as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(n) The Company has not agreed and is not required, to make any adjustment to taxable income in any period (or portion thereof) ending after the Closing Date by reason of (i) a change in method of accounting for any period (or portion thereof) ending on or before the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing Date, (iv) prepaid amount or deferred revenue received or accrued on or prior to the Closing Date, (v) use of an improper method of accounting for a taxable period ending on or prior to the Closing Date; (vi) intercompany transaction or excess loss account described in the regulations promulgated under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); or (vii) election under Section 108(i) of the Code. The Company will not be required to include any adjustment item of income in taxable income for any Tax taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Ideanomics, Inc.)
Xxx Matters. (a) Except as set forth on in Section 4.12 2.13(a) of the Company PERA Disclosure Schedule, as of the date hereof:
(ai) The Acquired Companies have PERA has timely filed with the appropriate Governmental Entities all income Tax Returns and other material Tax Returns that are it was required to be filed by them. All Taxes due and owing by the Acquired Companies file under applicable Legal Requirements, (whether or not shown on ii) all such Tax Returns) Returns were correct and complete in all material respects and have been paid. None of the Acquired Companies prepared in material compliance with all applicable Legal Requirements, (iii) PERA is not currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions that have Return, and (iv) no claim has ever been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose made by an authority in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No a jurisdiction in or Governmental Entity with which the Acquired Companies do where PERA does not file a Tax Return has alleged in writing Returns that any of the Acquired Companies it is required subject to file such a Tax Returntaxation by that jurisdiction.
(b) The Acquired Companies All Taxes due and owing by PERA on or before the date hereof (whether or not shown on any Tax Return) have been timely paid. Any unpaid Taxes of PERA have been adequately reserved for on the PERA Balance Sheet. Except as set forth in Section 2.13(b) of the PERA Disclosure Schedule, since the PERA Balance Sheet Date, PERA has not incurred any Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.
(c) PERA has timely withheld and timely paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other Third Party.
(c) There is no dispute concerning any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaidthird party, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entityif any.
(d) There are no agreements Encumbrances for Taxes (other than Taxes not yet due and payable or Taxes that are being contested in good faith and for which adequate reserves have been made on PERA’s Interim Balance Sheet) upon any of the assets of PERA.
(e) Except as set forth in Section 2.13(e) of the PERA Disclosure Schedule, no deficiencies for Taxes with respect to PERA have been claimed, proposed or assessed by any Governmental Body in writing. There are no pending (or, based on written notice, threatened) audits, assessments or other actions for or relating to the allocating or sharing any liability in respect of Taxes of PERA. No issues relating to which Taxes of PERA were raised by the Acquired Companies are relevant Tax authority in any completed audit or examination that would reasonably be expected to result in a material amount of Taxes in a later taxable period. PERA has delivered or made available to GC complete and accurate copies of all federal income Tax and all other Tax Returns of PERA (and predecessors) for all taxable years remaining open under the applicable statute of limitations, and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by PERA (and predecessors), with respect to federal income Tax and all other Taxes. PERA (and its predecessors) has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, nor has any request been made in writing for any such extension or waiver. No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings relating to Taxes have been entered into or issued by any Governmental Body with or in respect of PERA.
(f) PERA has not agreed, nor is it required to make, any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise.
(g) PERA 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.
(h) PERA is not a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than customary agreements commercial contracts entered into in the ordinary course Ordinary Course of businessBusiness with vendors, a principal customers and landlords, the primary purpose of which is does not related relate to Taxes.
(e) None of the Acquired Companies (i) PERA has never been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code filing a consolidated, combined or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, unitary Tax Return (other than the affiliated a group of which the Company is the common parent of which is PERA) for federal, state, local or (ii) has foreign Tax purposes. PERA does not have any liability Liability for the Taxes of any Person (other than any Acquired CompanyPERA) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) state, local, or foreign law), as a transferee or successor, by Contract, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes)otherwise.
(fj) None PERA has not distributed equity of another Person, or has had its membership interests 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 Acquired Companies Code or Section 361 of the Code.
(k) PERA will not be required to include any adjustment in item of income in, or exclude any item of deduction from, taxable income for any Tax period (or any portion thereof) ending after the Closing Date as a result of any: any (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or other open transaction disposition made on or prior to the Closing; Closing Date, (ivii) agreement with any prepaid amount received Tax authority (including any closing agreement described in Section 7121 of the Code or any similar provision of state, local or foreign law) made or entered into on or prior to the Closing Date, (iii) prepaid amount or deferred revenue or advance payment; (viv) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(gl) None of the Acquired Companies have participated in PERA has not entered into any transaction which constitutes a “listed reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(26011 of the Code (and the Treasury Regulations promulgated thereunder) or of which a main purpose or effect is the avoidance or evasion of a Tax liability or which could be a re-characterized or treated as unenforceable for Tax purposes.
(m) To PERA’s Knowledge, PERA has not taken any action, nor has any Knowledge of any fact or circumstance, that would reasonably be expected to prevent the Contemplated Transactions from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(in) All intercompany transactions between and among any Prior to the consummation of the Acquired Companies have met the requirements of Section 482 of the Code Exchange and the regulations thereunder (Contemplated Transactions, PERA has executed and any similar provision of applicable state, local, or nonfiled all required forms and applications to effect a check-the-box election with the IRS electing to classify PERA as an association taxable as a corporation for U.S. Law)federal tax purposes, and PERA has timely executed and filed any and all comparable forms or applications required by any applicable U.S. state or local or similar tax law for PERA to be classified as an association taxable as a corporation under such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law)law.
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Xxx Matters. (a) Except as set forth on in Section 4.12 2.13(a) of the Company Bombshell Disclosure Schedule, as of the date hereof:
(ai) The Acquired Companies have Bombshell has timely filed with the appropriate Governmental Entities all income Tax Returns and other material Tax Returns that are it was required to be filed by them. All Taxes due and owing by file under applicable Legal Requirements, (ii) to the Acquired Companies (whether or not shown on Knowledge of Bombshell, all such Tax Returns) Returns were correct and complete in all material respects and have been paid. None of the Acquired Companies prepared in material compliance with all applicable Legal Requirements, (iii) Bombshell is not currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions that have Return, and (iv) no claim has ever been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose made by an authority in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No a jurisdiction in or Governmental Entity with which the Acquired Companies do where Bombshell does not file a Tax Return has alleged in writing Returns that any of the Acquired Companies it is required subject to file such a Tax Returntaxation by that jurisdiction.
(b) The Acquired Companies All material Taxes due and owing by Bombshell on or before the date hereof (whether or not shown on any Tax Return) have been paid. Any unpaid Taxes of Bombshell have been reserved for on the Bombshell Balance Sheet. Except as set forth in Section 2.13(b) of the Bombshell Disclosure Schedule, since the Bombshell Balance Sheet Date, Bombshell has not incurred any Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.
(c) Bombshell has withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, stockholder or other Third Party.
(c) There is no dispute concerning any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaidthird party, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entityif any.
(d) There are no agreements Encumbrances for Taxes (other than Taxes not yet due and payable or Taxes that are being contested in good faith and for which adequate reserves have been made on Bombshell’s Interim Balance Sheet) upon any of the assets of Bombshell.
(e) Except as set forth in Section 2.13(e) of the Bombshell Disclosure Schedule, no deficiencies for Taxes with respect to Bombshell have been claimed, proposed or assessed by any Governmental Body in writing. There are no pending (or, based on written notice, threatened) audits, assessments or other actions for or relating to the allocating or sharing any liability in respect of Taxes of Bombshell. No issues relating to which Taxes of Bombshell were raised by the Acquired Companies relevant Tax authority in any completed audit or examination that would reasonably be expected to result in a material amount of Taxes in a later taxable period. Bombshell has delivered or made available to GC complete and accurate copies of all federal income Tax and all other Tax Returns of Bombshell (and predecessors) for all taxable years remaining open under the applicable statute of limitations, and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by Bombshell (and predecessors), with respect to federal income Tax and all other Taxes. Bombshell (and its predecessors) has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, nor has any request been made in writing for any such extension or waiver.
(f) All material elections with respect to Taxes affecting Bombshell as of the date hereof are set forth on Section 2.13(f) of the Bombshell Disclosure Schedule. Bombshell has not (i) agreed, nor is it required to make, any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise; (ii) elected at any time to be treated as an S corporation within the meaning of Sections 1361 or 1362 of the Code; or (iii) made any of the foregoing elections nor is required to apply any of the foregoing rules under any comparable provision of state, local or foreign law.
(g) Bombshell 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.
(h) Bombshell is not a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than customary agreements commercial contracts entered into in the ordinary course Ordinary Course of businessBusiness with vendors, a principal customers and landlords, the primary purpose of which is does not related relate to Taxes.
(e) None of the Acquired Companies (i) Bombshell has never been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code filing a consolidated, combined or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, unitary Tax Return (other than the affiliated a group of which the Company is the common parent of which is Bombshell) for federal, state, local or (ii) has foreign Tax purposes. Bombshell does not have any liability Liability for the Taxes of any Person (other than any Acquired CompanyBombshell) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) state, local, or foreign law), as a transferee or successor, by Contract, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes)otherwise.
(fj) None Bombshell has not 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 Acquired Companies Code or Section 361 of the Code.
(k) Bombshell will not be required to include any adjustment in item of income in, or exclude any item of deduction from, taxable income for any Tax period (or any portion thereof) ending after the Closing Date as a result of any: any (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or other open transaction disposition made on or prior to the Closing; Closing Date, (ivii) agreement with any prepaid amount received Tax authority (including any closing agreement described in Section 7121 of the Code or any similar provision of state, local or foreign law) made or entered into on or prior to the Closing Date, (iii) prepaid amount or deferred revenue or advance payment; (viv) any election under Section 108(i) of the Code Code.
(or l) Bombshell has not entered into any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (transaction identified as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporationlisted transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2).
(m) To Bombshell’s Knowledge, Bombshell has not taken any action, nor has any Knowledge of any fact or circumstance, that would reasonably be expected to prevent the Contemplated Transactions from qualifying as a reorganization within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2368(a) of the Code.
(i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies have Company has filed with the appropriate Governmental Entities all Tax Returns that are it has been required to be filed by themfile for all periods through and including the Closing Date. All such Tax Returns were correct and complete in all respects. All Taxes due and owing owed by the Acquired Companies Company (whether or not shown on such any Tax ReturnsReturn) have been timely paid. None of the Acquired Companies currently is the beneficiary of The Company has not requested or been granted any extension of time within which to file any Tax Return Return.
(b) The Company has maintained adequate provision for all unpaid Liabilities for Taxes, whether or not disputed, that have accrued with respect to or are applicable to the period ended on and including the Closing Date or to any years and periods prior thereto and for which the Company may be directly or contingently liable in its own right or as a transferee of the assets of, or successor to, any Person. The Company has not incurred any Tax Liabilities other than customary extensions in the Ordinary Course of Business for any taxable year for which the applicable statute of limitations has not expired. No claim has ever been made by an Authority in a jurisdiction where the Company does not pay Taxes or file Tax Returns and is or may be subject to taxation by that have been obtained consistent with past practicejurisdiction. There are no Encumbrances Liens on any of the assets of any of the Acquired Companies Company that arose in connection with any failure (or alleged failure) to pay any Tax.
(c) Since inception, other than Permitted Encumbrances. All Taxes none of the Acquired Companies that are not yet due Tax Returns of the Company have ever been audited or investigated by any taxing Authority, and payable no facts exist which would constitute grounds for the assessment of any additional Taxes by any taxing Authority with respect to the taxable years covered in such Tax Returns. No issues have been properly reserved raised in any examination by any taxing Authority with respect to the businesses and operations of the Company which, by application of similar principals, reasonably could be expected to result in a proposed adjustment to the Liability for in Taxes for any other period not so examined. Neither the Acquired Companies financial statements. No jurisdiction in Seller nor the Directors or Governmental Entity officers (or employees responsible for Tax matters) of the Company have received, or expect to receive, from any taxing Authority any written notice of a proposed adjustment, deficiency, underpayment of Taxes or any other such notice which has not been satisfied by payment or been withdrawn, and no claims have been asserted relating to such Taxes against the Company.
(d) Schedule 3.13 lists all federal, state, local, and foreign income Tax Returns filed with respect to the Company for the prior four taxable periods for which the Acquired Companies do applicable statue of limitations has not file a expired, none of those Tax Return Returns have been audited, and none of those Tax Returns that currently are the subject of audit. The State of Nevada has alleged in writing that any of no state taxes, so the Acquired Companies is Company has not been required to file such any Tax Returns with the State of Nevada. The Seller has delivered to the Buyer the prior four years of correct and complete copies of all federal, state, local and foreign income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Company for taxable periods for which the applicable statute of limitations has not expired. The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax Returnassessment or deficiency.
(be) The Acquired Companies have Company has withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid including, without limitation, sales and use taxes, and all Taxes in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Third Party.
(c) There is no dispute concerning any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaid, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entity.
(d) There are no agreements relating to the allocating or sharing of Taxes to which the Acquired Companies are a party other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to Taxes.
(e) None of the Acquired Companies (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, other than the affiliated group of which the Company is the common parent or (ii) has any liability for the Taxes of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) as a transferee or successor, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes)third party.
(f) None The Company has not filed a consent to the application of Section 341(f) of the Acquired Companies Code.
(g) The Company will not be required required, as a result of (i) a change in accounting method for a Tax period beginning on or before the Closing Date, to include any adjustment under Section 481(c) of the Code (or any corresponding provision of state, local or foreign Tax Law) in taxable income for any Tax period (beginning on or portion thereof) ending after the Closing Date as a result of any: (i) any change in method of accounting made prior to the Closing Date, or use of an improper method of accounting, including under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any “closing agreement agreement,” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Tax Law), to include any item of income in, or exclude any item of deduction from, any Tax period beginning on or after the Closing Date.
(h) The Company has disclosed on its income Tax Returns all positions taken therein that could give rise to an accuracy-related penalty under Section 6662 of the Code (or any corresponding provision of Tax law).
(i) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under any certain circumstances could obligate it to make any “excess parachute payment” as defined in Section 280G of the Code or any payments that will not be deductible under Section 162(m) of the Code.
(j) The Company is not a party to any Tax allocation or sharing agreement. The Company is not subject to any joint venture, partnership or other arrangement or Contract which is treated as a partnership for federal income Tax purposes.
(k) None of the assets of the Company constitutes tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code, and none of the assets reflected on the Financial Statements is subject to a lease, safe harbor lease or other arrangement as a result of which the Company holding legal title to the asset is not treated as the owner for federal income Tax purposes.
(l) The basis of all depreciable or amortizable assets, and the methods used in determining allowable depreciation or amortization (including cost recovery) deductions of the Company, are correct and in compliance with the Code and the regulations thereunder in all material respects.
(m) The Seller is not a “foreign person” as defined in Section 1445(f)(3) of the Code.
(n) The Company has not: (A) been a member of an Affiliated Group filing a consolidated federal income Tax Return or (B) any Liability for the Taxes of any Person (other than itself) under Treas. Reg. §1.1502-6 (or any similar provision of state, local, or non-U.S. foreign Law), as a transferee or successor, by Contract, or otherwise.
(o) executed prior The Company is not a party to or otherwise subject to any arrangement having the effect of or giving rise to the Closing; (iii) any installment sale recognition of a deduction or open transaction disposition made loss in a taxable period ending on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to before the Closing Date by any Subsidiary that is and a “controlled foreign corporation” (within the meaning corresponding recognition of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) taxable income or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated gain in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning ending after the Closing Date, or any other arrangement that would have the effect of or give rise to the recognition of taxable income or gain in a taxable period ending after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
Appears in 1 contract
Samples: Stock Purchase Agreement
Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies MTI and each of its Subsidiaries have timely filed with the appropriate Governmental Entities all Tax Returns that are required to be have been filed by themor with respect to MTI and each of its Subsidiaries, and all such Tax Returns are true, correct and complete. All MTI has made available to EVI all correct and complete copies of all income Tax Returns filed by, and all Tax examination reports and statements of deficiencies assessed against or agreed to by MTI for all periods beginning with the fiscal year ended December 31, 2018, and all other material Tax Returns for which the applicable statute of limitations has not yet expired. MTI and each of its Subsidiaries have timely paid all Taxes attributable to MTI or any of its Subsidiaries that were due and owing payable by the Acquired Companies (whether or not them as shown on such Tax Returns) , except with respect to matters contested in good faith and which have been paidadequately reserved against in accordance with GAAP.
(b) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the assessment of, any Taxes of MTI or any of its Subsidiaries, and no request for any such waiver or extension is pending or requested. None Neither MTI nor any of the Acquired Companies currently is the beneficiary of its Subsidiaries has filed any extension of time within which to file any Tax Return other than customary extensions Returns in respect of any fiscal year that have not since been obtained consistent with past practice. There are no Encumbrances on any of the assets of the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax Return.
(b) The Acquired Companies have withheld and paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Third Partyfiled.
(c) There are no audits, examinations, disputes or other proceedings with respect to Taxes of MTI or any of its Subsidiaries, and no such audit, examination, dispute or other proceeding is no dispute concerning pending or threatened by a Governmental Authority. Neither MTI nor any of its Subsidiaries has received any claim from any Governmental Authority in a jurisdiction where it does not file Tax liability Returns that MTI or any of the Acquired Companies raised its Subsidiaries is or may be subject to taxation by that jurisdiction. No deficiency or claim for Taxes against MTI or any of its Subsidiaries has been claimed, proposed or assessed by any Governmental Entity in writing Authority with respect to MTI, nor, to the Acquired Companies that remains unpaidKnowledge of MTI, has such a claim or deficiency been threatened against MTI or any of its Subsidiaries for any alleged deficiency in Taxes of MTI or any of its Subsidiaries. All deficiencies for Taxes asserted or assessed against MTI and none of its Subsidiaries have been fully and timely paid, settled or properly reserved for and reflected on the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written notice, proposal, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental EntityMTI Financial Statements.
(d) There are no agreements relating Liens with respect to Taxes on the allocating assets or sharing business of Taxes to which the Acquired Companies are a party MTI or any of its Subsidiaries other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to TaxesPermitted Liens.
(e) None Neither MTI nor any of its Subsidiaries (1) is now, or ever has been, a party to any agreement or arrangement relating to the Acquired Companies sharing, allocation or indemnification of Taxes or net operating losses, Tax credits or other Tax benefits, and (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, other than the affiliated group of which the Company is the common parent or (ii2) has any liability Liability for the Taxes of any Person (other than any Acquired Companyits Subsidiaries) under Treasury Regulations Section 1.1502-6 § 1.1502–6 (or any similar provision of state, local or foreign Law) ), as a transferee or successor, or by contract or otherwise. Neither MTI nor any of its Subsidiaries has ever been a member of a group filing consolidated Tax Returns for United States federal income tax purposes (other than a contract entered into in except for the ordinary course of business a principal purposes group of which MTI is not related to Taxesthe common parent).
(f) None MTI and each of its Subsidiaries has duly and timely withheld any amounts owed with respect to employees, independent contractors, creditors, stockholders, foreign corporations, nonresident aliens, foreign corporations, third parties, and United States real property interests, and has duly and timely paid proper and accurate amounts to the appropriate Governmental Authority for all periods through the date hereof in compliance with all Tax withholding provisions of applicable federal, state, local and foreign Laws (including, without limitation, income, social security, and employment Tax withholding for all types of compensation).
(g) Neither MTI nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Acquired Companies Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement (or will constitute such a corporation in the two (2) years prior to the Closing Date) or (ii) in a distribution that otherwise constitutes part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) that includes the MTI Merger.
(h) Neither MTI nor any of its Subsidiaries is aware of the existence of any fact or circumstance, or has taken or agreed to take any action, that would reasonably be expected to prevent or impede the MTI Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(i) Neither MTI 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).
(j) Neither MTI nor any of its Subsidiaries has entered into a closing agreement under Section 7121 of the Code or any similar provision of state, local or foreign Laws, or is subject to any binding determination of the IRS or any comparable ruling of any Governmental Authority.
(k) There is no contract, plan or arrangement covering any Person that would give rise to the payment of any amount that would not be deductible by reason of Section 162(m) of the Code.
(l) Neither MTI nor any of its Subsidiaries has participated, within the meaning of Treasury Regulations § 1.6011–4(c), in any “reportable transaction” within the meaning of Section 6011 of the Code. MTI has disclosed on its Tax Returns all positions taken therein that could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code (or any similar provision of state, local or foreign Laws).
(m) Neither MTI nor any of its Subsidiaries 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. Neither MTI nor any of its Subsidiaries is a “foreign person” within the meaning of Section 1445(f) of the Code.
(n) Neither MTI nor any of its Subsidiaries is required to include any adjustment in item of income in, or exclude any item of deduction or loss from, taxable income for any Tax taxable period (or portion thereof) ending after the Closing Date as a result of any: any (i) any change in accounting method of accounting made prior to the Closing or use of an improper method of accounting, including under Section 481 or Section 263A 481(a) of the Code (or any predecessor provision or any similar provision of applicable state, provincial, local or foreign Tax Law); ) for a taxable period ending on or before the Closing Date, (ii) any prepaid amount received on or prior to the Closing Date, (iii) “closing agreement agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, localprovincial, local or non-U.S. foreign Tax Law) executed on or prior to the Closing; Closing Date, or (iiiiv) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
Xxx Matters. Except as set forth on Section 4.12 of the Company Disclosure Schedule, as of the date hereof:
(a) The Acquired Companies have filed Grantee has reviewed with the appropriate Governmental Entities all Tax Returns that are required to be filed Grantee’s own tax advisors the federal, state, local and foreign (if applicable) tax consequences of the grant of the Restricted Shares and the transactions contemplated by themthis Agreement and the Plan. All Taxes due and owing by the Acquired Companies (whether or not shown The Grantee is relying solely on such Tax Returns) have been paid. None advisors and not on any statements or representations of the Acquired Companies currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions that have been obtained consistent with past practice. There are no Encumbrances on Company or any of its agents. The Grantee (and not the assets Company) will be responsible for the Grantee’s own tax liability that may arise as a result of this investment or the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of transactions contemplated by this Agreement and the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax ReturnPlan.
(b) The Acquired Companies have withheld Grantee understands that Section 83 of the Code taxes as ordinary income the difference between the amount paid for the Restricted Shares and paid the fair market value of the Restricted Shares as of the date any restrictions on the Restricted Shares lapse. The Grantee understands that he/she may elect to be taxed at the time the Restricted Shares are received rather than when vested by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of transfer to the appropriate Governmental Entity all Taxes required Grantee. If the Grantee makes any tax election relating to have been withheld and paid in connection with amounts paid or owing to any employeethe treatment of the Restricted Shares under the Code, independent contractor, creditor, stockholder, or other Third Partyat the time of such election the Grantee will notify the Company of such election.
(c) There is no dispute concerning any Tax liability of the Acquired Companies raised by any Governmental Entity in writing to the Acquired Companies that remains unpaidTHE GRANTEE ACKNOWLEDGES THAT IT IS THE GRANTEE’S SOLE RESPONSIBILITY, and none of the Acquired Companies has received written notice of any threatened audits or investigations relating to any Taxes. The Acquired Companies have never received any written noticeAND NOT THE COMPANY’S, proposalTO FILE TIMELY THE ELECTION UNDER SECTION 83(b), assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental EntityEVEN IF THE GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE GRANTEE’S BEHALF.
(d) There The Grantee understands that, at the time that the Restricted Shares are no agreements relating to the allocating or sharing of Taxes to which the Acquired Companies are a party other than customary agreements entered into in the ordinary course of business, a principal purpose of which is not related to Taxes.
(e) None of the Acquired Companies (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, other than the affiliated group of which the Company is the common parent or (ii) has any liability for the Taxes of any Person (other than any Acquired Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law) as a transferee or successorgranted, or by contract (other than a contract entered into in at the ordinary course time of business a principal purposes of which is not related to Taxes).
(f) None of vesting, the Acquired Companies will be required to include any adjustment in taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of any: (i) any change in method of accounting made prior to the Closing or use of an improper method of accounting, including Grantee may incur tax obligations under Section 481 or Section 263A of the Code (or any similar provision of applicable Law); (ii) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; (iv) any prepaid amount received on or prior to the Closing or deferred revenue or advance payment; (v) any election under Section 108(i) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in Section 956(c)) of the Code) on a date prior to the Closing Date by any Subsidiary that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code); (vii) any Subsidiary of an Acquired Company that is a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(i) All intercompany transactions between and among any of the Acquired Companies have met the requirements of Section 482 of the Code and the regulations thereunder (and any similar provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federal, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Reliefand/or foreign law, and Economic Security Act the Company may be required to withhold amounts from the Grantee’s compensation or otherwise collect from the Grantee related to such obligations. The Grantee agrees that the Company (or a Related Entity) may satisfy such withholding obligations relating to the Restricted Shares by any of 2020the following means or by a combination of such means, Pub. L. 116-136, for which an in the Company’s discretion: (i) withholding from any compensation otherwise payable to the Grantee by the Company; (ii) causing the Grantee to tender a cash payment; or (iii) withholding Restricted Shares with a fair market value (measured as of the date the tax withholding obligations are to be determined) equal to the amount of Tax due has been deferred to a post-Closing period.
(k) Notwithstanding anything such tax withholding obligations from the Restricted Shares otherwise issuable to the contrary contained in this AgreementGrantee; provided, no representation however, that the number of such Restricted Shares so withheld will not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum statutory withholding rates for federal, state, local and foreign tax purposes, including payroll taxes, that are applicable to supplemental taxable income (or warranty is made such other amount as may be necessary to avoid classification of the Restricted Shares as a liability for financial accounting purposes). The Grantee understands that all matters with respect to the total amount or availability of any Tax attribute (including taxes to be withheld in respect of such compensation income will be determined by the Company in its reasonable discretion. The Grantee further understands that, although the Company will pay withheld amounts to the applicable taxing authorities, the Grantee remains responsible for payment of all taxes due as a net operating loss or Tax credit) for any taxable period or portion thereof beginning after result of income arising under this Agreement and the Closing DatePlan.
Appears in 1 contract
Samples: Restricted Stock Award Agreement (Aytu Biopharma, Inc)
Xxx Matters. Except as set forth on Section 4.12 (1) Each of the Company Disclosure Schedule, as of the date hereof:
SCSG and its Subsidiaries has duly and timely filed (ataking into account all applicable extensions) The Acquired Companies have filed with the appropriate Governmental Entities all material Tax Returns that are it was required to be filed by themfile under applicable Laws. All such Tax Returns were correct and complete in all material respects and have been prepared in compliance with all applicable Laws in all material respects. All material Taxes due and owing by the Acquired Companies SCSG or any of its Subsidiaries (whether or not shown on such any Tax ReturnsReturn) have been fully and timely paid. None Neither SCSG nor any of the Acquired Companies its Subsidiaries is currently is the beneficiary of any extension of time within which to file any Tax Return other than customary extensions Return. Neither SCSG nor any of its Subsidiaries has ever received written notice of any claim by any Governmental Authority in a jurisdiction where SCSG or such Subsidiary does not file Tax Returns that have been obtained consistent with past practiceit is or may be subject to Taxes by that jurisdiction. There are no Encumbrances on material Liens for Taxes (other than Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP) upon any of the assets of the Acquired Companies that arose in connection with any failure to pay any Tax, other than Permitted Encumbrances. All Taxes of the Acquired Companies that are not yet due and payable have been properly reserved for in the Acquired Companies financial statements. No jurisdiction in SCSG or Governmental Entity with which the Acquired Companies do not file a Tax Return has alleged in writing that any of the Acquired Companies is required to file such a Tax Returnits Subsidiaries.
(b2) The Acquired Companies SCSG and each of its Subsidiaries have collected or withheld and paid over to the appropriate Governmental Entity Taxing Authority all amounts of Taxes required to have been collected or withheld and paid over by it, and has complied in all respects with all information reporting and backup withholding requirements under all applicable federal, state, local and foreign Laws in connection with amounts paid or owing to any Person, including Taxes required to have been collected or withheld and paid in connection with amounts paid or owing to any employee, employee or independent contractor, creditor, stockholdershareholder or other third party, and Taxes required to be collected or withheld an paid pursuant to Sections 1441, 1442, and 3406 of the Code or similar provisions under state, local, or foreign Law.
(3) No foreign, federal, state or local Tax audits or administrative or judicial Tax proceedings are currently being conducted or pending or threatened in writing, in each case, with respect to Taxes of SCSG or any of its Subsidiaries. Neither SCSG nor any of its Subsidiaries has received from any foreign, federal, state or local taxing authority (including jurisdictions where SCSG or any of its Subsidiaries have not filed Tax Returns) any (i) written notice indicating an intent to open an audit, action, suit, proceeding, claim, investigation, examination, or other Third PartyLitigation regarding any Tax or other review with respect to Taxes or (ii) written notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any taxing authority against SCSG or any of its Subsidiaries which, in either case (i) or (ii), has not been fully paid or settled. There are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment of any Tax or deficiency against SCSG or any of its Subsidiaries, and neither SCSG nor any of its Subsidiaries has waived or extended the applicable statute of limitations for the assessment or collection of any Tax or agreed to a Tax assessment or deficiency.
(c4) There is no dispute concerning any Tax liability SCSG has delivered or made available to CBAN true and complete copies of the Acquired Companies raised by foreign, federal, state or local Tax Returns filed with respect to SCSG or any Governmental Entity in writing to the Acquired Companies that remains unpaidof its Subsidiaries, and none of the Acquired Companies has received written notice all examination reports and statements of any threatened audits deficiencies assessed against or investigations relating agreed to any by SCSG, in each case with respect to income Taxes. The Acquired Companies have never received any written notice, proposalfor taxable periods ended on or after December 31, assessment, injunction, or request for payment or deficiencies of Taxes from any Governmental Entity2017.
(d5) There are no agreements relating Neither SCSG nor any of its Subsidiaries 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). Neither SCSG nor any of its Subsidiaries is a party to the allocating or is otherwise bound by any Tax allocation, sharing of Taxes agreement or similar agreement pursuant to which the Acquired Companies are a party it has any material obligation to any Person with respect to Taxes (other than customary agreements such an agreement with customers, vendors, lessors or similar third parties entered into in the ordinary course Ordinary Course of business, a principal purpose of which is Business and not primarily related to Taxes.
(e) None ). Neither SCSG nor any of the Acquired Companies its Subsidiaries (i) has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code or within the meaning of any similar provision of Law to which the Acquired Companies may be subject, filing a consolidated federal income Tax Return (other than the affiliated a group of which the Company is the common parent of which was SCSG), or (ii) has any liability for the Taxes of any Person (other than any Acquired CompanySCSG and its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of foreign, state or local Law) ), as a transferee or successor, by contract, or by contract (other than a contract entered into in the ordinary course of business a principal purposes of which is not related to Taxes)otherwise.
(f6) None The most recent Financial Statements as of the Acquired Companies date hereof reflect an adequate reserve, in accordance with GAAP, for all Taxes payable by SCSG and its Subsidiaries for all taxable periods through the date of such Financial Statements. Since December 31, 2020, neither SCSG nor any of its Subsidiaries has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the Ordinary Course of Business.
(7) Neither SCSG nor any of its Subsidiaries will be required to include any adjustment in material item of income in, or exclude any material item of deduction from, taxable income for any Tax taxable period (or portion thereof) ending after the Closing Date Effective Time as a result of any: (i) any change in method of accounting made pursuant to Section 481 of the Code or any comparable provision under foreign, state or local Law for a taxable period ending on or prior to the Closing or use of an improper method of accounting, including under Date; (ii) “closing agreement” as described in Code Section 481 or Section 263A of the Code 7121 (or any corresponding or similar provision of applicable foreign, state or local Law) executed on or prior to the Closing Date; (iii) intercompany transactions or any excess loss account described in Regulations under Code Section 1502 (or any corresponding or similar provision of foreign, state or local Law); (iiiv) any closing agreement as described in Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) executed prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the ClosingClosing Date; or (ivv) any prepaid amount received on or prior to the Closing Date.
(8) Since January 1, 2018, neither SCSG nor any of its Subsidiaries has distributed stock of another Person nor had its stock distributed by another Person in a transaction that was intended to be nontaxable and governed in whole or deferred revenue in part by Section 355 or advance payment; Section 361 of the Code.
(v9) Neither SCSG nor any election under of its Subsidiaries has been a party to any “listed transaction,” as defined in Section 108(i6707A(c)(2) of the Code (or any similar provision of applicable Law) made prior to the Closing; (vi) ownership of “United States property” (as defined in and Section 956(c)1.6011-4(b)(2) of the CodeRegulations in any tax year.
(10) on a date prior to the Closing Date by Neither SCSG nor any Subsidiary that of its Subsidiaries (i) is a “controlled foreign corporation” (within the meaning of as defined in Section 957(a) 957 of the Code); , (viiii) any Subsidiary of an Acquired Company that is a “controlled passive foreign corporation” (within the meaning of Section 957(a) of the Code) having “subpart F Income” (within the meaning of Section 952(a) of the Code) or having “global intangible low-taxed income) (within the meaning of Section 951A of the Code), in each case, earned prior to the Closing, or (viii) application of Section 965 of the Code (including an election under Section 965(h) of the Code (or any similar provision of Law)).
(g) None of the Acquired Companies have participated in a “listed transaction” (within the meaning of Treasury Regulation Section 1.6011-4(b)(2)).
(h) None of the Acquired Companies have been has been, at any time, a “United States real property holding corporationinvestment company” within the meaning of Section 897(c)(21297 of the Code, or (iii) has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.
(11) Neither SCSG nor any of its Subsidiaries has taken or agreed to take any action, or is aware of any fact or circumstance, that would be reasonably likely to prevent the Merger or the Bank Merger from qualifying for U.S. federal income tax purposes as a “reorganization” within the meaning of Section 368(a) of the Code.
(i12) All intercompany transactions between Set forth in SCSG Disclosure Schedule 3.18(l) are the net operating loss, net capital loss, credit, minimum Tax, charitable contribution, and among any other Tax carryforwards (by type of carryforward and expiration date, if any) of SCSG and each of its Subsidiaries. Except as set forth on SCSG Disclosure Schedule 3.18(l), none of those carryforwards are, as of the Acquired Companies have met Closing Date and without giving effect to the requirements of Section 482 Merger, presently subject to limitation under Sections 382, 383, or 384 of the Code and Code, or the regulations thereunder (and federal consolidated return regulations, or any similar analogous provision of applicable state, local, or non-U.S. Law), and all such transactions are supported by contemporaneous documentation as defined in Section 6662 of the Code (and any similar provision of applicable state, local, or non-U.S. Law).
(j) None of the Acquired Companies have taken advantage of any relief provisions related to COVID-19 for Tax purposes whether federalforeign, state, local, or foreign, including, but not limited to, the Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. 116-136, for which an amount of local Tax due has been deferred to a post-Closing periodLaw.
(k) Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made with respect to the amount or availability of any Tax attribute (including a net operating loss or Tax credit) for any taxable period or portion thereof beginning after the Closing Date.
Appears in 1 contract
