Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇. 1. 1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Tax Returns; Taxes. FDC (a) All U.S. federal, state and its subsidiaries have timely filed local income Tax Returns and all tax returns that are other material Tax Returns required to have been filed by any member of the Company Group, have been duly filed and are correct and complete in any jurisdictionall material respects. All Taxes shown as due on such Tax Returns, and all such tax returns are complete material Taxes otherwise due and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due owing by any taxing authoritymember of the Company Group, whether or have been paid in full.
(b) There are not shown on a tax return, and FDC and its subsidiaries have paid all now any extensions of time (other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (ithan extensions of time automatically granted) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and effect with respect to the dates on which FDC any Tax Returns of any member of the Company Group were or are due to be filed. All material deficiencies asserted as a subsidiaryresult of any examination of any Tax Returns of any member of the Company Group have been paid in full, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves accrued on the books of FDC the applicable member of the Company Group or finally settled, and its subsidiaries no issue has been raised in respect any such examination which, by application of Federalthe same or similar principles, state reasonably could be expected to result in a proposed material deficiency for any other taxable period.
(c) No claims have been asserted and no proposals or other taxes material deficiencies for all fiscal periods any Taxes of any member of the Company Group are adequate in all respects. Except as set forth on Schedule 3(k)being asserted, neither FDC nor proposed or, to the Knowledge of the Company, threatened, and no audit or investigation of any Tax Return of its subsidiaries any member of the Company Group is currently the beneficiary of any extension of time within which to file any tax returnunderway, pending or threatened in writing. No claim has ever been made by an authority a Taxing Authority in a jurisdiction where FDC or in which any member of its subsidiaries do the Company Group does not file tax returns Tax Returns that any of them are it is or may be subject to taxation by that jurisdiction. There are no security interests on any .
(d) Each member of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have Company Group has withheld and paid all taxes that any of them are material Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder Stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute There are no outstanding waivers or claim concerning agreements by or on behalf of any tax liability member of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any the Company Group for the extension of time with respect to a tax for the assessment of any Taxes or deficiency. FDC deficiency thereof, nor are there any requests for rulings pending between any member of the Company Group and its subsidiaries any Taxing Authority.
(e) There are no Liens for Taxes on any of the assets of the Company Group (other than Permitted Liens).
(f) No member of the Company Group (i) is a party to any Tax allocation, sharing or indemnification agreement under which any member of the Company Group will have not any Liability after the Closing; (ii) has been a member of an affiliated group filing a consolidated federal income tax return that filed or was required to file an affiliated, consolidated, combined or unitary Tax Return (other than the affiliated group of which FDC the Company is the common parent, and ); or (iiiii) have no liability has any Liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesany other member of the Company Group) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign lawLaw), as a transferee or successor, by contract Contract, or otherwise.
(g) The Company has made available to Parent correct and complete copies of all federal, state, local and foreign income Tax Returns (together with any agent’s reports and any accountants’ work papers) of the Company that have been filed relating to each member of the Company Group’s respective operations for Taxable periods ended on or after December 31, 2013.
(h) No member of the Company Group has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code.
(i) No member of the Company Group will be required to include any item of income in, or exclude any item of deduction from, Taxable income for any Post-Closing Tax Period as a result of any: (i) change in method of accounting for a Taxable period ending prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S. Tax Law) executed on or before the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or non-U.S. Tax Law); (v) prepaid amount received on or before the Closing Date; or (vi) election made under Section 108(i) of the Code.
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently 4.15:
(a) All Tax Returns due to have been filed by the beneficiary of any Company through the date hereof in accordance with all applicable Laws (pursuant to an extension of time within or otherwise) have been duly filed and are true, correct and complete in all respects.
(b) All Taxes for which the Company has liability through the date hereof (whether or not shown on any Tax Return) have been paid in full or are accrued as liabilities for Taxes on the books and records of the Company.
(c) There are not now any extensions of time in effect with respect to file the dates on which any tax return. Tax Returns were or are due to be filed by the Company.
(d) All Tax deficiencies asserted as a result of any examination by a Governmental Entity of a Tax Return of the Company have been paid in full, accrued on the books of the Company or finally settled, and no issue has been raised in any such examination that, by application of the same or similar principles, reasonably could be expected to result in a proposed Tax deficiency for any other period not so examined.
(e) No claims have been asserted and no proposals or deficiencies for any Taxes of the Company are being asserted, proposed or, to the Knowledge of the Company, threatened, and no audit or investigation of any Tax Return of the Company is currently underway, pending or, to the Knowledge of the Company, threatened.
(f) No written claim has ever been made against the Company by an authority any Governmental Entity in a jurisdiction where FDC or any of its subsidiaries do the Company does not file tax returns Tax Returns that any of them are the Company is or may be subject to taxation by that in such jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have .
(g) The Company has withheld and paid all taxes that any of them are Taxes required to withhold and pay have been paid by it in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder creditor or shareholder thereof or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute .
(h) There are no outstanding waivers or claim concerning agreements between any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC Governmental Entity and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any the Company for the extension of time for the assessment of any Taxes or deficiency thereof, nor are there any requests for rulings, outstanding subpoenas or requests for information, notices of proposed reassessment of any property owned or leased by the Company or any other Tax related matter pending between the Company and any Governmental Entity.
(i) Other than Permitted Liens, there are no Liens for Taxes with respect to the Company or the assets or properties of the Company, nor is there any such Lien that is pending or, to the Knowledge of the Company, threatened.
(j) The Company is not a tax assessment party to or deficiency. FDC and its subsidiaries bound by any Tax allocation or sharing agreement.
(ik) have The Company has not been a member of an “affiliated group group” of corporations (within the meaning of Code Section 1504 of the Code) filing a consolidated federal income tax return (other than a group the affiliated group common parent of which FDC is was the parent, and Company).
(iil) The Company does not have no any liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesfor itself) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax law), as a transferee or successor, by contract or otherwise.
(m) None of the Tax Returns described in Subsection (a) of this Section 4.15 contains any position which is or would be subject to penalties under Section 6662 of the Code (or any similar provision of provincial, state, local or foreign Tax law) and the Treasury Regulations issued thereunder.
(n) The Company has not made any payments, is not obligated to make any payments, and is not a party to any contract, plan or arrangement that obligates it to make any payments of (1) any amounts that will be “excess parachute payments” under Section 280G of the Code (or any corresponding provision of state, local or foreign Tax law), (2) any amount that would trigger any excise tax under Section 4999 of the Code, and (3) any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of state, local or foreign Tax law);
(o) The Company 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.
(p) There is currently no limitation on the utilization of the net operating losses, built-in losses, capital losses, Tax credits or other similar items of the Company under Sections 382, 383, 384 or 1502 of the Code and Treasury Regulations promulgated thereunder.
(q) The Company is currently, and has been since January 1, 2004 a valid “S corporation” within the meaning of Section 1361(a) of the Code (and will be up to the Closing Date), and no Governmental Entity has challenged, or is challenging, the S election of the Company.
(r) The Company is, and has at all times been, in compliance with the provisions of Section 6011, 6111 and 6112 of the Code relating to tax shelter disclosure, registration and list maintenance and with the Treasury Regulations thereunder.
(s) The Company has not at any time, engaged in or entered into a “listed transaction” within the meaning of Treasury Regulation Sections 1.6011-4(b)(2), 301.6111-2(b)(2) or 301.6112-1(b)(2)(A), and no IRS Form 8886 has been filed with respect to the Company nor has the Company entered into any tax shelter or listed transaction with the sole or dominant purpose of the avoidance or reduction of a Tax liability with respect to which there is a significant risk of challenge of such transaction by a Governmental Entity.
(t) The Company has not, directly or indirectly, transferred property to or acquired property from a Person with whom it was not dealing at arm’s length for consideration other than consideration equal to the fair market value of the property at the time of the disposition or acquisition thereof.
(u) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period after the Closing Date as a result of any (i) change in method of accounting for a Tax period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) any installment sale or open transaction disposition made on or prior to the Closing Date; or (iv) prepaid amount received on or prior to the Closing Date.
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k)3.16:
(a) all federal and material state and local Tax Returns of the Company or otherwise exclusively relating to the Business required to have been filed with any taxing authority in accordance with any applicable Law have been duly filed (taking into account any requests for extensions to file such Tax Returns) and are correct and complete in all material respects;
(b) all federal and material state and local Taxes required to be paid by the Company or with respect to the Business or the Transferred Assets have been paid in full;
(c) all material deficiencies asserted as a result of any examination of any Tax Returns of the Company have been paid in full, neither FDC nor accrued on the books of the Company or finally settled;
(d) no disputes or claims have been asserted and no proposals or deficiencies for any Taxes of the Company or any Taxes of any other Person, including Seller and its subsidiaries Affiliates, for which the Company could be held liable are being asserted, proposed or, to the Knowledge of Seller, threatened, and no audit or investigation of any Tax Return of the Company or any Tax Return of such other Person relating to Taxes for which the Company could be held liable is currently underway, pending or, to the beneficiary Knowledge of any extension of time within which to file any tax return. No claim Seller, threatened;
(e) the Company has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are material Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, equity holder, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning party and has complied in all material respects with any tax liability reporting requirements relating thereto;
(f) there are no outstanding waivers or Contracts by or on behalf of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any the Company for the extension of time for the assessment of any Taxes or any deficiency thereof;
(g) there are no Liens for Taxes against any asset of the Company or the Transferred Assets (other than Permitted Liens);
(h) there are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitation applicable to the assessment or collection of any Taxes of or against the Company or relating to the Business;
(i) none of the Transferred Assets consists of any interest in a corporation, partnership or other entity for Tax purposes; and
(j) no jurisdiction in which the Company conducts business but does not file any Tax Return has asserted a written claim that the Company or a portion of its business is subject to any Taxes imposed by such jurisdiction. Notwithstanding anything in this Agreement to the contrary, the representations and warranties set forth in this Section 3.16 shall be deemed the sole and exclusive representations and warranties of Seller with respect to a tax assessment or deficiency. FDC Taxes and its subsidiaries (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇Tax matters.▇▇.
1. 1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Tax Returns; Taxes. FDC Except as otherwise disclosed on Section 4.8 of the Parent Disclosure Schedule:
(a) all income and its subsidiaries have timely filed all tax returns that are other material Tax Returns of Parent required to have been filed with any Governmental Entity in accordance with any jurisdictionapplicable Law have been duly and timely filed and are true, correct and complete in all such tax returns are complete material respects;
(b) all Taxes due and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due owing by any taxing authority, Parent (whether or not shown on any Tax Return) have been timely paid in full;
(c) there are no extensions of time in effect with respect to the dates on which any Tax Returns of Parent were or are due to be filed;
(d) all deficiencies asserted as a tax returnresult of any examination of any Tax Returns of Parent have been paid in full or finally settled;
(e) no claims for additional Taxes have been asserted in writing and no proposals or deficiencies for any Taxes of Parent are being asserted, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchisesproposed or, to the extent such taxes knowledge of Parent, threatened, and assessments have become due and payable and before they have become delinquent, except for no audit or investigation of any taxes and assessments (i) the amount Tax Return of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which Parent is currently being contested in good faith underway, pending or, to the knowledge of Parent, threatened;
(f) there are no outstanding waivers or agreements by appropriate proceedings and with respect to which FDC or a subsidiary, as on behalf of Parent for the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file for the assessment of any tax return. No claim has been made by an authority in a jurisdiction where FDC material Taxes or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC deficiency thereof and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries Parent has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation limitations in respect of taxes or agreed Taxes;
(g) there are no Liens for Taxes against any asset of Parent (other than Liens for Taxes which are not yet due and payable);
(h) Parent is not nor has been a party to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries “listed transaction,” as defined in Treasury Regulation Section 1.6011-4(b)(2); and
(i) have not been Following the Domestication, Parent will be treated and classified for U.S. federal and applicable state and local Tax purposes as a member domestic corporation (within the meaning of the Code). Merger Sub II is treated and classified for U.S. federal and applicable state and local Tax purposes as an affiliated group filing entity which is disregarded as an entity separate from its owner (within the meaning of Section 301.7701-2 of the Treasury Regulations), and no election has or shall be made to treat Merger Sub II as anything other than a consolidated disregarded entity for U.S. federal income tax return other than Tax purposes if such election would reasonably be expected to prevent the affiliated group of which FDC is the parentMergers, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502-6 (or any similar provision of statetaken together, local or foreign law), from qualifying as a transferee or successor, by contract or otherwisereorganization under Section 368(a) of the Code.
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely filed Except as otherwise disclosed on Schedule 3.13:
(a) all tax returns that are material Tax Returns of the Group Companies required to have been filed with any Governmental Entity in accordance with any jurisdiction, applicable Law have been duly and timely filed and are correct and complete in all such tax returns are complete material respects;
(b) all Taxes due and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due owing by any taxing authority, whether or of the Group Companies have been paid in full;
(c) there are not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for now any taxes and assessments (i) the amount extensions of which is not individually or time in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and effect with respect to the dates on which FDC any Tax Returns of the Group Companies were or are due to be filed;
(d) all deficiencies asserted as a subsidiaryresult of any examination of any Tax Returns of the Group Companies have been paid in full, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves accrued on the books of FDC the Group Companies or finally settled;
(e) no claims for additional Taxes have been asserted in writing within the last three (3) years and its subsidiaries in respect no proposals or deficiencies for any Taxes of Federalthe Group Companies are being asserted, state proposed or, to the Knowledge of the Company, threatened, and no audit or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor investigation of any Tax Return of its subsidiaries the Group Companies is currently underway, pending or, to the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any Knowledge of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries Company, threatened;
(f) the Group Companies have withheld and paid all taxes that any of them are material Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute ;
(g) there are no outstanding waivers or claim concerning agreements by or on behalf of the Group Companies for the extension of time for the assessment of any tax liability of FDC material Taxes or any deficiency thereof and none of its subsidiaries the Company or the Company Subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation limitations in respect of taxes or agreed to Taxes;
(h) there are no Liens for Taxes against any extension asset of time with respect to a tax assessment or deficiency. FDC the Group Companies (other than Liens for Taxes which are not yet due and its subsidiaries payable);
(i) other than the Tax Receivables Agreement, no Group Company is a party to any Tax allocation or sharing agreement under which the Group Companies will have any liability after the Closing (excluding customary commercial agreements the primary subject of which is not Taxes);
(j) no Group Company has been a member of an affiliated group filing a consolidated U.S. federal income tax return Tax Return (other than a group the affiliated group common parent of which FDC is was the parent, and (ii) have no Company); or has any liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesany of the Company or the Company Subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign lawLaw), as a transferee or successor, by contract or otherwise;
(k) no Group Company is or has been a party to any “listed transaction,” as defined in Treasury Regulation Section 1.6011-4(b)(2);
(l) no claim has ever been made by an Governmental Entity in a jurisdiction where the Group Companies do not file Tax Returns that any Group Company may be subject to taxation by that jurisdiction;
(m) the Company 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;
(n) none of the assets of the Company and the Company Subsidiaries are an equity interest in an entity or arrangement classified as a partnership for United States federal, state or local income Tax purposes;
(o) each Group Company is, and has been at all times since December 10, 2010, treated as a corporation for United States federal tax purposes;
(p) no Group Company will be required to include any material item of income in, or exclude any material deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting, or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (iii) intercompany transactions as described in Treasury Regulations Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign income Tax law) or excess loss account described in Treasury Regulations Section 1.1502-19 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; (v) prepaid amount received on or prior to the Closing Date; (vi) election described in Section 108(i) of the Code (or any corresponding or similar provision of state, local or non-U.S. Law); and
(q) none of the Company or any Company Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
Appears in 1 contract
Tax Returns; Taxes. FDC Except as otherwise disclosed on Schedule 3.13:
(a) all income, franchise and its subsidiaries other material Tax Returns of the Company and each Company Subsidiary have been duly and timely filed (after giving effect to any valid extensions of time in which to make such filings) in all tax returns that jurisdictions in which such Tax Returns are required to have been be filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves Taxing Authority in accordance with GAAP. There is no basis for any other taxapplicable Law and such Tax Returns are true, assessmentcorrect and complete in all material respects;
(b) all Taxes due and owing by the Company and each Company Subsidiary, interest payment or penalty including those Taxes that could have a Material adverse effect. The charges, accruals are shown as due and reserves owing on the books of FDC foregoing Tax Returns, have been paid in full and its subsidiaries in respect of Federal, state there are no material disputes or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made claims by an authority a Taxing Authority in a jurisdiction where FDC the Company or any of its subsidiaries do Company Subsidiary does not file tax returns Tax Returns concerning any Tax liability of the Company or any Company Subsidiary claimed or raised by any authority, such that any of them they are or may be subject to taxation Tax by such jurisdiction;
(c) timely and effective elections were made (and not subsequently revoked) under Section 338(h)(10) of the Code (and any corresponding provision of state or local Tax law) with respect to each of the Acquisitions;
(d) there are not now any extensions of time in effect with respect to the dates on which any Taxes are or were due or the date on which any Tax Returns of the Company or any Company Subsidiary were or are due to be filed, neither the Company nor any Company Subsidiary has waived any statute of limitations in respect of Taxes, and no power of attorney has been granted to any Person that jurisdiction. There is currently in force with respect to any Tax matter of the Company or any Company Subsidiary;
(e) all deficiencies asserted as a result of any examination of any Tax Returns of the Company or any Company Subsidiary have been paid in full, accrued on the Financial Statements or Interim Financial Statements of the Company or a Company Subsidiary, as applicable, or finally settled, and there are no security interests on other audits or investigations by any Taxing Authority in progress, nor have the Seller Indemnified Parties, the Company or any of the assets Company Subsidiaries received any written notice from any Taxing Authority that it intends to conduct such an audit or investigation of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC the Company;
(f) the Company and its subsidiaries have each Company Subsidiary has duly and timely withheld and paid all taxes that any of them are Taxes required to withhold have been withheld and pay in connection paid to the appropriate Taxing Authority;
(g) with amounts paid or owing respect to any employeeperiod for which Tax Returns have not yet been filed or for which Taxes are not yet due or owing, independent contractorthe Company has made due and sufficient accruals for such Taxes in the Financial Statements or the Interim Financial Statements and all required estimated Tax payments sufficient to avoid any underpayment penalties or interest have been made by or on behalf of the Company and each Company Subsidiary;
(h) neither the Company nor, creditorto the Company’s Knowledge, stockholder any Company Subsidiary have 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);
(i) there are no outstanding waivers or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute agreements by or claim concerning any tax liability on behalf of FDC the Company or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any Company Subsidiary for the extension of time with respect for the assessment of any material Taxes or any deficiency thereof;
(j) there are no material Liens for Taxes against any asset of the Company or any Company Subsidiary (other than Liens for Taxes which are not yet due and payable);
(k) neither the Company nor any Company Subsidiary is a party to a tax assessment any Tax allocation, sharing or deficiency. FDC and its subsidiaries similar agreement (iwhether or not written) under which the Company or any Company Subsidiary will have any liability after the Closing (excluding commercial agreements the primary subject of which is not Taxes); and
(l) neither the Company nor any Company Subsidiary has been a member of an affiliated group filing a combined, consolidated federal or unitary income tax return Tax Return (other than a group the common parent of which was the Company);
(m) within the past two years or otherwise as part of a “plan (or series of related transactions)” with the transactions contemplated by this Agreement, neither the Company nor any Company Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code Section 355 or Code Section 361;
(n) neither the Company nor any Company Subsidiary is nor has been a party to any “listed transaction” as defined in Code Section 6707A(c)(2) and Treasury Regulation Section 1.6011-4(b)(2);
(o) neither the Company nor any Company Subsidiary is subject to any private letter ruling of the IRS or comparable rulings of any Taxing Authority; and
(p) neither the Company nor any Company Subsidiary has, or has ever had, a permanent establishment in any country other than the affiliated group of country in which FDC is the parent, and (ii) it was incorporated or formed; nor have no liability for the taxes of they engaged in a trade or business in any person (country other than FDC and its subsidiaries) under Treas. ▇▇▇the United States that subjected it to tax in such country.▇▇.
1. 1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement (Trimble Navigation LTD /Ca/)
Tax Returns; Taxes. FDC and its subsidiaries have timely (a) All Tax Returns filed all tax returns that are or required to have been filed by or on behalf of the Group Companies have been duly and timely filed with the appropriate Tax Authority in all jurisdictions in which such Tax Returns were required to be filed (after giving effect to any jurisdictionvalid extensions of time in which to make such filings), and all such tax returns filed Tax Returns are true, correct and complete and accurate, and were prepared in compliance with applicable lawall material respects. FDC and its subsidiaries have paid all taxes due, or claimed All material Taxes shown to be due and owing on such filed Tax Returns or otherwise required to have been paid by or with respect to each of the Group Companies or the Transferred Assets (regardless of whether shown as due on any taxing authorityTax Return) have been fully and timely paid, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, except to the extent that such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently Taxes are being contested in good faith by appropriate proceedings and with respect to proceedings, for which FDC or a subsidiary, as the case may be, has established adequate reserves have been established on the Financial Statements in accordance with GAAP.
(b) No written claim has been received by any Group Company from a Tax Authority in a jurisdiction where the Group Companies do not file a Tax Return to the effect that any Group Company is or may be subject to taxation in that jurisdiction, nor, to the Knowledge of Seller, has any Tax Authority threatened to make such an assertion.
(c) All deficiencies asserted or assessments made as a result of any examinations or audits by any Tax Authority with respect to the Group Companies have been fully paid, or each of the Group Companies has made full and adequate provision in its books and records and the Financial Statements for all Taxes which are not due and payable. There is Each Group Company has made all required estimated Tax payments in amount sufficient to avoid any underpayment penalty. As of the Execution Date, no basis federal, state, local or foreign Audits, examinations, matters in controversy, proposed adjustments or Actions by any Governmental Entity are presently pending, in progress or threatened with regard to any Taxes or Tax Returns filed by or on behalf of the Group Companies, nor have any such Audits, examinations, matters in controversy, proposed adjustments or Actions been conducted with respect to any Group Company in the two (2) years immediately preceding the date hereof. No Group Company has received from a Governmental Entity any notice indicating an intent to open an audit or other review with respect to any Group Company or any request for information related to Tax matters of or with respect to any Group Company.
(d) None of the Group Companies or any other tax, assessment, interest payment Person on behalf of the Group Companies has been given or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of requested any extension of time within which to file any tax returnTax Return, which Tax Return has not since been filed, nor been granted or agreed to any extension for the assessment or collection of Taxes, other than extensions with respect to Tax Periods for which the applicable statute of limitations, as so extended, has since expired. No claim has waivers of statutes of limitations have been made given or requested with respect to any Taxes of any Group Companies. No power of attorney granted by an authority or with respect to any Group Company relating to Taxes is currently in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. force.
(e) There are no security interests on Liens as a result of any unpaid Taxes (other than Permitted Liens) upon any of the assets of FDC the Group Companies or the Transferred Assets.
(f) None of the Group Companies is a party to any Tax sharing, Tax allocation, Tax indemnity or any similar written or unwritten agreement, arrangement, understanding or practice relating to Taxes other than any such agreement or Contract entered into in the Ordinary Course and not primarily related to Taxes, and no Group Company has Liability or potential Liability for Taxes of its subsidiaries that arose in connection with another Person under any failure such agreement, arrangement, understanding or alleged failure to pay any tax. FDC and its subsidiaries practice, or as a transferee or successor or by operation of law.
(g) The Group Companies have withheld or collected and timely paid to the appropriate Tax Authority (or is properly holding for such timely payment) all Taxes required to have been withheld and complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes, including all applicable Laws relating to information reporting and record retention, and paid all taxes that any of them are required to withhold (other than current Taxes not yet due and pay payable) in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder equityholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries Person has been claimed or raised by treated as an independent contractor of any taxing authority. FDC and its subsidiaries Group Company for Tax purposes who should have not waived any statute been treated as an employee for such purposes.
(h) None of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries the Group Companies (i) have not been is subject to any private letter ruling of the IRS or comparable rulings of any other Governmental Entity; (ii) has ever had a member of an affiliated group filing a consolidated federal income tax return permanent establishment (or other taxable presence) in any country other than the affiliated group United States; or (iii) has engaged in any “listed transaction” within the meaning of which FDC Treasury Regulations Section 1.6011-4(b)(1).
(i) None of the Group Companies has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Sections 355 and 361 of the Code.
(j) Each Group Company is the parentand has been at all times since its formation, properly classified as a disregarded entity for U.S. federal and applicable state income tax purposes.
(iik) have no liability No Group Company has any Liability for the taxes Taxes of any person other Person (other than FDC and its subsidiariesincluding predecessor) under Treas. ▇▇▇.▇▇.
1. 1502by operation of Law, Contract, assumption, transferee or successor Liability or otherwise (including by reason of Treasury Regulations Section 1.1502-6 (or any analogous provision of any state, local, or foreign Law)).
(l) The Company is not required to make any adjustments by reason of Treasury Regulations Section 1.1502-36(d).
(m) For purposes of this Section 3.13, any reference to the Group Companies shall be deemed to include any Person (i) that merged with or was liquidated or converted into the Group Companies or (ii) for which any Group Company is a successor under Section 381 of the Code (or under any similar provision of Law).
(n) None of the Group Companies has (i) deferred the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act or any other payroll taxes under the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, as issued on August 8, 2020, or IRS Notice 2020-65, or (ii) claimed any credits received Sections 7001 through 7005 of the Families First Coronavirus Response Act (Public Law 116-127) or Section 2301 of the CARES Act.
(o) No Group Company has ever had a permanent establishment or otherwise had an office or fixed place of business, in each case, in a country other than the United States of America.
(p) Each Group Company has collected all sales Taxes, use Taxes, gross receipts Taxes, and any similar Taxes required to be collected, and has remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Entities, or has been furnished properly completed exemption certificates and has maintained all such records and supporting documents in the manner required by all applicable sales and use Tax statutes and regulations.
(q) No Group Company will be required to include any amount in taxable income or exclude any item of deduction or loss from taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (a) any “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local local, or foreign non-U.S. Tax law)) executed on or prior to the Closing Date by any Group Company, (b) any installment sale or open transaction disposition made on or prior to the Closing Date by any Group Company, (c) any prepaid amount received on or prior to the Closing Date by any Group Company, (d) any change in method of accounting for a taxable period ending on or prior to the Closing Date, or (e) any use of an improper method of accounting for a taxable period ending on or prior to the Closing Date.
(r) There are no joint ventures, partnerships, limited liability companies, or other arrangements or Contracts to which any Group Company is a party that could be treated as a transferee or successor, by contract or otherwisepartnership for United States federal income Tax purposes.
Appears in 1 contract
Sources: Purchase Agreement (Nextier Oilfield Solutions Inc.)
Tax Returns; Taxes. FDC Except as otherwise disclosed on Schedule 3.13:
(a) all income and its subsidiaries have timely filed all tax returns that are other material Tax Returns of the Company required to have been filed with any Governmental Entity in accordance with any jurisdiction, applicable Law have been duly and timely filed and are correct and complete in all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid material respects;
(b) all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become Taxes due and payable and before they owing by the Company have become delinquent, except for been paid in full;
(c) there are not now any taxes and assessments (i) the amount extensions of which is not individually or time in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and effect with respect to the dates on which FDC any Tax Return of the Company were or are due to be filed;
(d) all deficiencies asserted as a subsidiaryresult of any examination of any Tax Returns of the Company have been paid in full, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves accrued on the books of FDC the Company or finally settled;
(e) no claims for additional unpaid Taxes have been asserted in writing within the last three (3) years and its subsidiaries in respect no proposals or deficiencies for any Taxes of Federalthe Company are being asserted, state proposed or, to the Knowledge of the Company, threatened, and no audit or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor investigation of any Tax Return of its subsidiaries the Company is currently underway, pending or, to the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any Knowledge of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have Company, threatened;
(f) the Company has withheld and paid all taxes that any of them are Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute ;
(g) there are no outstanding waivers or claim concerning agreements by or on behalf of the Company for the extension of time for the assessment of any tax liability of FDC Taxes or any of its subsidiaries deficiency thereof and the Company has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation limitations in respect of taxes or agreed to Taxes;
(h) there are no Liens for Taxes against any extension asset of time with respect to a tax assessment or deficiency. FDC the Company (other than Liens for Taxes which are not yet due and its subsidiaries payable);
(i) the Company is not a party to any Tax allocation or sharing agreement under which the Company will have any liability for Taxes after the Closing (excluding customary commercial agreements the primary subject of which is not Taxes);
(j) the Company has not been a member of an affiliated group filing a consolidated U.S. federal income tax return Tax Return (other than a group the affiliated common parent of which was the Company); and does not have any liability for the Taxes of any Person (other than a Person that is a member of a group of which FDC the Company is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiariescommon Parent) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign lawLaw), as a transferee or successor, or by contract (excluding customary commercial agreements the primary subject of which is not Taxes);
(k) the Company is not, and has not been, a party to any “listed transaction,” as defined in Treasury Regulation Section 1.6011-4(b)(2);
(l) no claim has ever been made by an Governmental Entity in a jurisdiction where the Company does not file Tax Returns that the Company may be subject to taxation by that jurisdiction;
(m) the Company 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;
(n) none of the assets of the Company are an equity interest in an entity or otherwisearrangement classified as a partnership for United States federal, state or local income Tax purposes;
(o) the Company is, and has been at all times since October 1, 2018, treated as a corporation for United States federal income Tax purposes;
(p) the Company will not be required to include any item of income in, or exclude any deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting, or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (iii) intercompany transactions as described in Treasury Regulations Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign income Tax law) or excess loss account described in Treasury Regulations Section 1.1502-19 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; (v) prepaid amount received on or prior to the Closing Date, other than amounts reflected on the Financial Statements and amounts accrued in the Ordinary Course since then; (vi) election described in Section 108(i) of the Code (or any corresponding or similar provision of state, local or non-U.S. Law);
(q) the Company has not distributed stock of another Person, nor has it had its stock distributed by another Person, in a transaction that purported or intended to be governed in whole or in part by Section 355 or 361 of the Code;
(r) the Company has not had a permanent establishment (within the meaning of an applicable Tax treaty or convention between the United States and such foreign country), or otherwise been subject to taxation in any country other than the country of its formation; and
(s) the Company has not taken, or agreed to take, any action, or has knowledge of any fact or circumstance, that could reasonably be expected to prevent the Merger, taken together, from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown Except as otherwise disclosed on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments Schedule 3.14:
(a) each Group Company has: (i) the amount of which is not individually or in the aggregate Material or timely filed (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for taking into account any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any allowable extension of time within which to file file) with the appropriate Taxing Authority all Tax Returns required to have been filed by such Group Company, as applicable, and all such Tax Returns were true and complete in all respects and (ii) timely paid all material Taxes required to have been paid by such Group Company whether or not shown on any tax return. No claim Tax Returns;
(b) each Group Company has timely collected or withheld and has duly and timely paid to the proper Taxing Authority all amounts required to have been made by an authority collected and withheld from its employees, independent contractors, creditors, customers, shareholders or other applicable party, in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject each case, to taxation by that jurisdictionthe extent legally required. There are no security interests deficiencies for Taxes that have been asserted or assessed by any Taxing Authority against any Group Company which remain unpaid;
(c) no Group Company has in place any agreement or extension of time for which to file any Tax Returns or pay any Tax, by way of assessment or otherwise, and no Group Company has an extension or waiver of a statute of limitation relating to any Tax;
(d) all deficiencies asserted as a result of any examination of any Tax Returns of the Group Companies have been paid in full, accrued on the books of the Group Companies or finally settled, and no Group Company has any liability for the Taxes of any Person (other than any of the assets of FDC Company or any of its subsidiaries that arose in connection with any failure the Company Subsidiaries) as a transferee or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid successor, by contract or owing to any employeeotherwise, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) including under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign lawnon-U.S. Law);
(e) no claims for additional Taxes have been asserted by a Taxing Authority in writing within the last three (3) years and no proposals or deficiencies for any Taxes of the Group Companies are being asserted, proposed or, to the Knowledge of the Company, threatened, and no audit or investigation of any Tax Return of the Group Companies is currently underway, pending or, to the Knowledge of the Company, threatened;
(f) there are no Liens for Taxes against any asset of the Group Companies (other than Permitted Liens);
(g) no Group Company is a party to any Tax allocation or sharing agreement under which the Group Companies will have any liability after the Closing (excluding customary commercial agreements the primary subject of which is not Taxes);
(h) no claim has ever been made by a Governmental Entity in a jurisdiction where the Group Companies do not file Tax Returns that any Group Company may be subject to taxation by that jurisdiction, including but not limited to, being subject to taxation in that jurisdiction by reason of having an office, place of business or permanent establishment in such jurisdiction;
(i) all material transactions carried out between Group Companies have been carried out on an arm’s length basis and each Group Company has in its possession and control any documents or other materials it is required to have in accordance with any transfer pricing legislation to which it subject;
(j) neither any Group Company nor any of its agents or advisors have been required to file any notice or disclosure with any tax authority under legislation which requires those persons to disclose any transaction entered into for a tax avoidance purpose;
(k) no Group Company is or has been a party to any reportable transaction as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4;
(l) no Group Company will be required to include any material item of income in, or exclude any material deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing as a transferee result of any: (i) change in method of accounting, or successoruse of an improper method of accounting, by contract for a taxable period ending on or otherwiseprior to the Closing; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing; (iii) intercompany transactions as described in Treasury Regulations Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign income Tax Law) or excess loss account described in Treasury Regulations Section 1.1502-19 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made on or prior to the Closing; (v) prepaid amount received on or prior to the Closing; (vi) election described in Section 108(i) of the Code (or any corresponding or similar provision of state, local or non-U.S. Law); and
(m) during the prior three-year period ending on the Luxembourg Merger Closing Date, neither the Company nor any predecessor thereof (if any) has issued any Company Shares in exchange for Cash Equivalents; and
(n) the Company is not a successor to any U.S. entity and is not treated as a U.S. corporation pursuant to Section 7874 of the Code.
Appears in 1 contract
Sources: Business Transaction Agreement (Modern Media Acquisition Corp.)
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k)3.14:
(a) All income and other material Tax Returns required to be filed by or with respect to Seller, neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC Company Group Member or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets and properties of FDC Seller or any Company Group Member with any Governmental Entity in accordance with any applicable Law have been timely and duly filed, and all such Tax Returns are true, correct and complete in all material respects;
(b) all income and other material Taxes required to be paid by Seller, any Company Group Member or with respect to any of the assets and properties of Seller or any Company Group Member(whether or not shown as due and owing on any Tax Return) have been timely paid in full;
(c) all deficiencies for, or adjustments in respect of, Taxes that have been claimed, proposed, asserted or assessed by any Governmental Entity as a result of any audit or other examination of any Tax Returns of Seller or any Company Group Member, or with respect to the assets and properties of Seller or any Company Group Member, or otherwise, have been paid, accrued on the books, as appropriate, of Seller or of the relevant Company Group Member, or finally settled;
(d) no deficiencies for, or adjustments in respect of, any Taxes of the Company Group or any Taxes of any other Person, including Seller and its subsidiaries that arose Affiliates, for which any Company Group Member could be held liable, including any liability pursuant to Section 1.1502-6 of the Treasury Regulations (or any similar provision of federal, state, local or non-U.S. applicable Law), are being claimed, assessed, asserted or proposed in writing or, to the Knowledge of Seller or Seller Parent, threatened by any Governmental Entity, and no claim, audit, examination, Action or investigation of any Tax Return or concerning any Tax liability of any Company Group Member is currently underway, pending, proposed or, to the Knowledge of Seller or Seller Parent, threatened by any Governmental Entity;
(e) Seller and each Company Group Member has timely withheld or collected and reported and paid over to the appropriate Governmental Entity all material Taxes required to have been withheld or collected and reported and paid, including in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, customer, creditor, equity holder, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability ;
(f) there are no outstanding waivers of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect limitations or Contracts or other agreements by or on behalf of taxes Seller or agreed to any Company Group Member for the extension of time for the assessment of any Taxes or any deficiency thereof, other than routine extensions granted in the Ordinary Course;
(g) there are no Liens for Taxes against any asset or properties of Seller or any Company Group Member (other than Permitted Liens);
(h) neither Seller nor any Company Group Member has any liability for the Taxes of any other Person (except in connection with respect to a tax assessment or deficiency. FDC and its subsidiaries any Combined Tax Return): (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502pursuant to Section 1.1502-6 of the Treasury Regulations (or any similar provision of federal, state, local or foreign lawnon-U.S. applicable Law), (ii) as a transferee or successor, (iii) by Contract or (iv) otherwise by operation of applicable Law;
(i) neither Buyer nor any Company Group Member will be required to include in any Taxable period (or portion thereof) ending after the Closing Date Taxable income attributable to income of Seller or any Company Group Member that accrued in any Pre-Closing Tax Period but was not recognized in such Taxable period as a result of (i) any improper use of any accounting method, a change in accounting method under Section 481 of the Code (or any similar provision of federal, state, local, or non-U.S. applicable Law), or agreement with any Governmental Entity, (ii) installment sale or open transaction, (iii) the long-term contract method of accounting, (iv) any prepaid amount received or otherwisedeferred revenue recognized on or prior to the Closing Date, (v) a “closing agreement” described in Section 7121 of the Code (or any similar provision of federal, state, local or non-U.S. applicable Law), or (vi) an intercompany transaction or excess loss account described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of federal, state, local or non-U.S. applicable Law) in each case, with respect to a transaction or agreement entered into, or change or election made, on or prior to the Closing Date;
(j) neither Seller nor any Company Group Member has made an election under Section 965(h) of the Code;
(k) no Company Group Member is a party to any Tax sharing, Tax indemnification, or Tax allocation agreement with any party relating to allocating, indemnifying, or sharing the payment of, or liability for, Taxes (or Tax benefits) (other than by reason of customary provisions in commercial agreements entered into with third parties in the ordinary course of business, the primary purpose of which does not relate to Taxes);
(l) no Company Group Member 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 three years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Transactions;
(m) no Company Group Member has participated in, or is participating in, an international boycott within the meaning of Section 999 of the Code;
(n) no Company Group Member organized under the laws of a country other than the U.S.
(i) has ever been treated as a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or as a U.S. corporation under Section 7874(b) of the Code, or (ii) was created or organized in the United States such that any such entity would be Taxable in the United States as a domestic entity pursuant to the dual charter provision of Treasury Regulations Section 301.7701-5(a);
(o) no Company Group Member organized under the laws of a country other than the U.S. (i) has an investment in “United States property” within the meaning of Section 956 of the Code, (ii) is engaged in the conduct of a United States trade or business for U.S. federal income Tax purposes or (iii) has elected under Section 897(i) of the Code to be treated as a U.S. corporation;
(p) neither Buyer nor any Company Group Member is or will be subject to any Tax in respect of any Pre-Closing Tax Period as a result of any deferred intercompany transaction (described in the Treasury Regulations promulgated under Section 1502 of the Code, or any similar provision of federal, state, local or non-U.S. applicable Law) entered into by any Company Group Member, on the one hand, and Seller and any of its Affiliates (other than any Company Group Member), on the other hand, prior to the Closing Date;
(q) without regard to anything set forth on the Schedules, at all times since their conversions to LLCs, each of TransCore Partners, LLC and TransCore ITS, LLC has been treated and properly classified as an entity disregarded as separate from the owner of each respective entity for U.S. federal income Tax purposes and will be so treated and classified as of the Closing, and no such entity has ever filed an election under Treasury Regulation Section 301.7701-3;
(r) without regard to anything set forth on the Schedules, since 2005 each of TLP Holdings, LLC, TransCore, LP, and Viastar Services, LP has been treated and properly classified as an entity disregarded as separate from the owner of each respective entity for U.S. federal income Tax purposes and will be so treated and classified as of the time of Closing, and no such entity has ever filed an election under Treasury Regulation Section 301.7701-3;
(s) without regard to anything set forth on the Schedules, at all times since its formation through the date hereof, TransCore Holdings, Inc. has been treated and properly classified as a corporation for U.S. federal income Tax purposes;
(t) without regard to anything set forth on the Schedules, at all times after the conversion of TransCore Atlantic, Inc. to a Delaware LLC, which shall be effective prior to the Closing Date, TransCore Atlantic LLC has been treated and properly classified as an entity disregarded as separate from its owner for U.S. federal income Tax purposes and will be so treated and classified at the time of the Closing, and TransCore Atlantic LLC (including any predecessor of TransCore Atlantic LLC) has never made any election under Treasury Regulation Section 301.7701-3;
(u) without regard to anything set forth on the Schedules, Amtech Systems, LLC was formed on July 31, 2005 and made an election under Treasury Regulation Section 301.7701-3 to be treated as an association taxable as a corporation effective as of January 1, 2015. As of the date of this Agreement, Amtech Systems, LLC is treated as an association taxable as a corporation and is an eligible entity under Treasury Regulation Section 301.7701-3(a);
(v) none of the assets or properties of Seller or any Company Group Member that are being transferred to Buyer as part of the Transactions (i) are assets or property that Buyer or any of its Affiliates will be required to treat as being owned by any other Person pursuant to the provisions of Section 168(f)(8) of the Code of 1954, as amended and in effect immediately before the enactment of the Tax Reform Act of 1986, (ii) are “tax-exempt use property” within the meaning of Section 168(h) of the Code, (iii) are “tax- exempt bond financed property” within the meaning of Section 168(g) of the Code, (iv) secures any debt, the interest of which is tax-exempt under Section 103(a) of the Code, (v) are subject to a “Section 467 rental agreement” as defined in Section 467 of the Code, or (vi) are subject to Section 197(f)(9) of the Code;
(w) without regard to anything set forth on the Schedules, neither Seller nor any Company Group Member has taken, or has agreed to take, any action that would reasonably be expected to prevent the purchase and sale of the Interests described in Section 2.1 from qualifying for the Intended Tax Treatment, and there are no facts or circumstances that could reasonably be expected to prevent the purchase and sale of the Interests described in Section 2.1 from qualifying for the Intended Tax Treatment; and
(x) Schedule 3.14(x) sets forth any election under Treasury Regulation Section 301.7701-3(c) that has been made with respect to any non-U.S. Company Group Member and is in effect at the time of this Agreement. References to any Company Group Member shall include any predecessor or successor thereof for purposes of this Section 3.14. The representations and warranties made in this Section 3.14 and, to the extent applicable, Section 3.17 are the exclusive representations and warranties of Seller with respect to Taxes. Seller makes no representation or warranty with respect to the existence, availability, amount, usability or limitations (or lack thereof) of any net operating loss, net operating loss carryforward, business interest carryforward, capital loss, capital loss carryforward, basis amount or other Tax attribute (whether federal, state, local or non-U.S.) of any entity within the Company Group after the Closing Date.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Roper Technologies Inc)
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k)4.14:
(a) The Company and each of its Subsidiaries has timely filed or caused to be timely filed all material Tax Returns (taking into account applicable extension periods) to the extent required to be filed under applicable Law, and neither FDC the Company nor any of its subsidiaries Subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has a Tax Return.
(b) All material Taxes that are due and payable have been made by an authority paid in a jurisdiction where FDC full or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. properly accrued on the Balance Sheet.
(c) All Tax Returns are correct and complete in all material respects and have been prepared in substantial compliance with all applicable Laws.
(d) There are no security interests Liens (other than Permitted Liens) on any of the assets of FDC the Company or any of its subsidiaries Subsidiaries that arose in connection with any failure (or alleged failure failure) to pay any tax. FDC Tax.
(e) The Company has not received written notice from any taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to material taxation by, or required to file a Tax Return in, that jurisdiction.
(f) The Company and each of its subsidiaries Subsidiaries have withheld and paid all taxes that any of them are material Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, leased employee, independent contractor, creditor, stockholder stockholder, or other third party. No action.
(g) To the Company’s Knowledge, suitno foreign, proceedingfederal, auditstate, investigationor local Tax audits or administrative or judicial Tax proceedings are pending, assessment, dispute threatened in writing or claim concerning any tax liability of FDC being conducted with respect to the Company or any of its subsidiaries Subsidiaries.
(h) The Company has been claimed delivered to the Purchaser correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or raised agreed to by the Company or any taxing authority. FDC and of its subsidiaries have not Subsidiaries filed or received since December 31, 2003.
(i) Neither the Company nor any of its Subsidiaries has waived any statute of limitation in limitations with respect of taxes to Taxes or agreed to any extension of time with respect to the assessment of Taxes.
(j) All accounting periods and methods used by the Company and each of its Subsidiaries for Tax purposes are permissible periods and methods, and neither the Company nor any of its Subsidiaries is or will be required to make any adjustment to its income under Section 481 of the Code in connection with a tax assessment change in accounting method used in taxable years for which Tax Returns have been filed prior to the date hereof.
(k) Neither the Company nor any of its Subsidiaries is a party to or deficiency. FDC and bound by any Tax allocation or sharing agreement.
(l) Neither the Company nor any of its subsidiaries Subsidiaries (i) have not has been a member of an affiliated group filing a consolidated federal income tax Tax return in any taxable year (other than the affiliated group of which FDC the Company is the common parent, and ) or (ii) have no has liability for the taxes Taxes of any person Person (other than FDC and the Company or one of its subsidiariesSubsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulation Section 1.1502-6 (or any similar provision of state, local local, or foreign law)Law, as a transferee or successor, by contract contract, or otherwise.
(m) The Company 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)(l)(A)(ii) of the Code.
(n) The unpaid Taxes of the Company and its Subsidiaries (i) did not, as of the date of the most recent Financial Statements, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Balance Sheet and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with past custom and practice of the Company and its Subsidiaries filing their Tax Returns.
(o) Neither the Company nor any of its Subsidiaries has engaged in any “reportable transactions” within the meaning of Treasury Regulation Section 1.6011-4(b)
(p) Neither the Company nor any of its Subsidiaries has been a party to any distribution in which the parties to the distribution treated the distribution as one to which Section 355 of the Code is applicable.
Appears in 1 contract
Sources: Merger Agreement (Accellent Corp.)
Tax Returns; Taxes. FDC Except as set forth in Section 3.12 of the Disclosure Schedule:
(a) The Companies and its subsidiaries the Subsidiaries (i) have timely filed or caused to be filed on a timely basis with the appropriate taxing authorities all tax returns that are material Tax Returns (as hereinafter defined) required to have been be filed in any jurisdictionby or with respect to the Companies and the Subsidiaries, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries (ii) have paid all Taxes (as hereinafter defined) on or before the due date for payment thereof. Such Tax Returns are correct and complete in all material respects.
(b) There are no liens for Taxes with respect to the assets of any of the Companies or Subsidiaries (except for statutory liens for current taxes due, not yet delinquent). None of the Tax Returns applicable to any of the Companies or claimed to be due Subsidiaries is currently being audited or examined by any taxing authority, whether and no such audit or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchisesexamination is pending or, to the extent such taxes and assessments have become due and payable and before they have become delinquentknowledge of any Seller, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAPthreatened. There is no basis for any other taxunpaid tax deficiency, assessment, interest payment determination or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor assessment currently outstanding against any of its subsidiaries is currently the beneficiary Companies or Subsidiaries for an amount in excess of $50,000. There are no outstanding agreements or waivers extending the statute of limitations relating to the assessment of Taxes applicable to any extension of time within which to file any tax return. the Companies or Subsidiaries.
(c) No claim has ever been made in writing by an authority in a jurisdiction where FDC or any of its subsidiaries do the Companies or Subsidiaries does not file tax returns Tax Returns that any of them are such Company or Subsidiary is or may be subject to taxation by that jurisdiction. There are no security interests on any .
(d) Each of the assets of FDC or any of its subsidiaries that arose Companies and the Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder stockholder, or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute .
(e) None of the Companies or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries the Subsidiaries (i) have not has been a member of an affiliated group (within the meaning of Section 1504(a) of the Code filing a consolidated federal income tax return Tax Return (other than a group the affiliated group common parent of which FDC is the parent, and was Sellers’ Parent) or (ii) have no has any liability for the taxes Taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502Section 1.1502-6 of the United States Treasury Regulation (or any similar provision of state, local or foreign Tax law), as a transferee or successor, or by contract contract.
(f) None of the Companies or otherwisethe Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(g) There is no contract, agreement, plan or arrangement to which any of the Companies or the Subsidiaries is a party, including, without limitation, the provisions of this Agreement, covering any employee or former employee of any of the Companies or the Subsidiaries, which, individually or collectively, will give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code or applicable legislation in jurisdictions outside the United States due to the consummation of the transactions contemplated by this Agreement.
(h) None of the Companies or the Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date, (iii) intercompany transactions or any excess loss account described in the United States Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law), (iv) installment sale occurring on or before the Closing Date, or (v) prepaid amount received on or prior to the Closing Date.
(i) None of the Companies or the Subsidiaries has participated in a “reportable transaction,” as set forth in Section 1.6011-4(b) of the United States Treasury Regulations or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Section 1.6011-4(b)(2) of the United States Treasury Regulations.
(j) Sellers have delivered or made available to Buyer correct and complete copies of all Income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Companies or the Subsidiaries filed or received since January 1, 2004.
(k) For purposes of this Agreement:
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely (a) All Tax Returns filed all tax returns that are or required to have been filed by or on behalf of the Group Companies have been duly and timely filed with the appropriate Tax Authority in all jurisdictions in which such Tax Returns were required to be filed (after giving effect to any jurisdictionvalid extensions of time in which to make such filings), and all such tax returns filed Tax Returns are true, correct and complete and accurate, and were prepared in compliance with applicable lawall respects. FDC and its subsidiaries have paid all taxes due, or claimed All Taxes shown to be due and owing on such filed Tax Returns or otherwise required to have been paid by any taxing authorityor with respect to each of the Group Companies have been fully and timely paid, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, except to the extent that such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently Taxes are being contested in good faith by appropriate proceedings and with respect to proceedings, for which FDC or a subsidiary, as the case may be, has established adequate reserves have been established on the Financial Statements in accordance with GAAP. There is .
(b) Since December 31, 2018, no basis for Group Company has (i) made, changed or revoked any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries election in respect of FederalTaxes; (ii) made, state changed or revoked any accounting method in respect of Taxes; (iii) prepared any Tax Returns in a manner which is not consistent with the past custom and practice with respect to the treatment of items on such Tax Returns; (iv) filed any amendment to a Tax Return; (v) incurred any Liability for Taxes other than in the Ordinary Course; (vi) settled any claim or assessment in respect of Taxes; (vii) consented to the extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes with any Governmental Entity; or (viii) surrendered any right to claim a refund of payments made in respect of Taxes.
(c) Since December 31, 2018, no written claim has been received by the Group Companies from a Tax Authority in a jurisdiction where the Group Companies do not file a Tax Return to the effect that the Group Companies are or may be subject to taxation in that jurisdiction, nor, to the Knowledge of the Company, has any Tax Authority threatened to make such an assertion.
(d) All deficiencies asserted or assessments made as a result of any examinations or audits by any Tax Authority with respect to the Group Companies have been fully paid, or each of the Group Companies has made full and adequate provision in its books and records and the Financial Statements for all Taxes which are not due and payable and all required estimated Tax payments sufficient to avoid any underpayment penalties have been made by or on behalf of the Group Companies. As of the date hereof, no federal, state, local or foreign Audits, examinations, matters in controversy, proposed adjustments or Actions by any Governmental Entity are presently pending, in progress or threatened with regard to any Taxes or Tax Returns filed by or on behalf of the Group Companies. No Group Company has received from a Governmental Entity any written notice indicating an intent to open an audit or other taxes review with respect to any Group Company or any request for all fiscal periods are adequate in all respects. Except as set forth information related to Tax matters of or with respect to any Group Company.
(e) None of the Group Companies or any other Person on Schedule 3(k), neither FDC nor any behalf of its subsidiaries is currently the beneficiary of Group Companies has been given or requested any extension of time within which to file any tax returnTax Return, which Tax Return has not since been filed, nor been granted any extension for the assessment or collection of Taxes, other than extensions with respect to Tax Periods for which the applicable statute of limitations, as so extended, has since expired. No claim has waivers of statutes of limitations have been made by an authority in a jurisdiction where FDC given or requested with respect to any Taxes of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. Group Companies.
(f) There are no security interests on Liens as a result of any unpaid Taxes (other than current Taxes not yet due and payable) upon any of the assets of FDC the Group Companies.
(g) None of the Group Companies is a party to any Tax sharing, Tax allocation, Tax indemnity or any similar written or unwritten agreement, arrangement, understanding or practice relating to Taxes, and no Group Company has Liability or potential Liability for Taxes of its subsidiaries that arose in connection with another Person under any failure such agreement, arrangement, understanding or alleged failure to pay any tax. FDC and its subsidiaries practice, or as a transferee or successor or by operation of law or otherwise.
(h) The Group Companies have withheld or collected and timely paid to the appropriate Tax Authority (or is properly holding for such timely payment) all Taxes required to have been withheld and complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes, including all applicable Laws relating to information reporting and record retention, and paid all taxes that any of them are required to withhold (other than current Taxes not yet due and pay payable) in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries .
(i) have not been None of the Group Companies (i) is subject to any private letter ruling of the IRS or comparable rulings of any other Governmental Entity; (ii) has ever had a member of an affiliated group filing a consolidated federal income tax return permanent establishment (or other taxable presence) in any country other than the affiliated group United States; (iii) has engaged in any “reportable transaction” within the meaning of which FDC Treasury Regulations Section 1.6011-4(b) or (iv) is a “United States real property holding corporation” within the parentmeaning of Section 897 of the Code.
(j) None of the Group Companies will be required to include amounts in income, and or exclude items of deduction, in a Taxable period beginning after the Closing Date as a result of: (i) a change in method of accounting occurring on or prior to the Closing Date; (ii) have no liability for closing agreement as described in Section 7121 of the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502-6 Code (or any similar provision of stateother applicable Law) on or prior to the Closing Date; (iii) an installment sale or open transaction arising in any Pre-Closing Tax Period; (iv) a prepaid amount received, local or foreign law)paid, as a transferee or successor, by contract or otherwise.prior to the Closing Date;
Appears in 1 contract
Tax Returns; Taxes. FDC Except as otherwise disclosed in Schedule 3.12: (a) all Tax Returns relating or with respect to the Owners, the Companies, the Assets and its subsidiaries the Business have been timely filed through the date hereof in accordance with any applicable law and are true, correct and complete in all tax returns material respects; (b) all Taxes relating to or with respect to the Owners, the Companies, the Assets and the Business that are required to have been filed in any jurisdiction, were due and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, payable through the date hereof (whether or not shown on a tax returnany Tax Return) have been timely paid in full; (c) to the Knowledge of the Companies, no claims have been asserted and no proposals or deficiencies for any Taxes relating or with respect to the Companies, the Assets and the Business are being asserted, proposed or threatened, and FDC no audit or investigation of any Tax Return relating or with respect to the Companies, the Assets and its subsidiaries have paid all other taxes and assessments levied upon them or their propertiesthe Business is currently underway, assets, income or franchisespending or, to the extent such taxes and assessments have become due and payable and before they have become delinquentKnowledge of the Companies, except for any taxes and assessments threatened; (id) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has ever been made by an authority any Governmental Entity in a jurisdiction where FDC or any of its subsidiaries the Companies do not file tax returns Tax Returns that any of them the Companies are or may be subject to taxation by in that jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have ; (e) each Company has withheld and paid all taxes that any of them are Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder equity holder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute party and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed; (f) there are no outstanding waivers or claim concerning any tax liability of FDC agreements by the Companies or any Owner for the extension of its subsidiaries has been claimed time for the assessment of any Taxes, nor are there any requests for rulings, outstanding subpoenas or raised requests for information, notice of proposed reassessment of any property owned or leased by the Companies or any other matter pending between any Owner or the Companies and any taxing authority. FDC ; (g) there are no Liens for Taxes upon any of the Companies, the Assets or the Business other than Liens for Taxes which are not yet due and its subsidiaries have payable, nor are there any such Liens which are pending or to the Knowledge of the Companies, threatened; (h) the Companies are not waived any statute of limitation in respect of taxes or agreed party to any extension of time with respect to a tax assessment Tax allocation or deficiency. FDC and its subsidiaries sharing agreement; (i) the Companies have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, return; and (iij) the Companies do not have no any liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesfor itself) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.
Appears in 1 contract
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction(a) Since January 1, and all such tax returns are complete and accurate1998, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes dueeither a Seller, an Affiliate of a Seller or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments Company (i) has timely filed or caused to be filed on a timely basis with the amount of which is not individually appropriate taxing authorities all material Tax Returns required to be filed by or in with respect to the aggregate Material Company, or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that Company could have a Material adverse effectliability, and (ii) has paid or made adequate provision for the payment of all Taxes shown to be due on such Tax Returns. The charges, accruals Such Tax Returns are correct and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate complete in all material respects.
(b) There are no Liens for Taxes with respect to the assets of the Company (except for statutory Liens for current taxes not yet delinquent). Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any Section 3.11(b) of the assets of FDC Disclosure Schedule, Sellers have received no notice that the Tax Returns applicable to the Company are currently being audited or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised examined by any taxing authority. FDC and its subsidiaries have not waived There is no material unpaid tax deficiency, determination or assessment currently outstanding against the Company or, to the knowledge of the Sellers, any claim for additional Taxes. There are no outstanding agreements or waivers extending the statute of limitation limitations relating to the assessment of Taxes applicable to the Company.
(c) Since January 1, 1998, the Company has complied in respect all material respects with all applicable Laws relating to the collection or withholding of taxes or agreed to Taxes.
(d) Except as set forth in Section 3.11(d) of the Disclosure Schedule, the Company has not incurred any extension Taxes after the Balance Sheet Date, other than in the ordinary course of time business consistent with respect to a tax assessment or deficiency. FDC and its subsidiaries past practice.
(e) The Company (i) have is not, and has not made an election to be treated as, a "consenting corporation" under ss. 341(f) of the Code and (ii) is not, and has not been, a "personal holding company" within the meaning of ss. 542 of the Code.
(f) Since January 1, 1998, the Company has not been a member of an a combined, consolidated, affiliated or unitary group for Tax filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇purposes.
1(g) The Company is not, nor has ever been, a party to any Tax sharing indemnity or similar agreement allocating tax liability that will not be terminated on the Closing Date without any future liability to such Company (including for past Taxes).
(h) The Company has not incurred any liability to make or possibly make any payments, either alone or in conjunction with any other payments, that:
(i) are non-deductible under, or would otherwise constitute a "parachute payment" within the meaning of, ss. 1502-6 280G of the Code (or any similar corresponding provision of state, local or foreign lawincome Tax Law) or
(ii) are or may be subject to the imposition of an excise Tax under ss. 4999 of the Code.
(i) The Company has not agreed to, and is not required to, make any adjustments or changes either on, before or (as a consequence of any action taken by the Sellers) after the Closing Date, to its accounting methods pursuant to ss. 481 of the Code (or similar provisions of state, local or foreign Law), and neither the Internal Revenue Service nor any other tax authority has proposed any such adjustments or changes in the accounting methods.
(j) Since January 1, 1998, no claim has to the knowledge of the Sellers ever been made by any Taxing authority in a jurisdiction in which any Seller (or its Affiliates, as appropriate) does not file Tax Returns to be filed with respect to the Business that any such Tax Returns should be filed.
(k) The Company is not, nor has ever been, a "United States real property holding corporation" within the meaning of ss. 897(c)(2) of the Code.
(l) The Company will not, as a transferee or successorconsequence of any action taken by the Sellers, be required to include in income during a taxable period that ends after the Closing Date any income that economically accrued and was accounted for prior to the Closing Date by contract reason of the installment method of accounting, the completed method of accounting, or otherwise, but excluding any and all estimates made with respect to jobs accounted for under the percentage of completion method consistently applied, and excluding the effect of any subsequent accounting method change, unless such accounting method change is required by the Code or the Internal Revenue Service.
(m) For U.S. federal income tax purposes: Section 3.11(m) of the Disclosure Schedule sets forth the name, address, U.S. taxpayer identification number of NTSC.
Appears in 1 contract
Sources: Share Purchase Agreement (American Technologies Group Inc)
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to Except as otherwise disclosed in Schedule 2.14:
(a) There have been no entity classification elections filed in pursuant to Treasury Regulations Section 301.7701-3 (or any jurisdictionanalogous provision of state or local income Tax Law) with respect to the Company. The Company is classified, and since the date of its formation has been classified, as a partnership for U.S. federal, state and local income Tax purposes, and none of the Seller Parties or the Company has taken a position inconsistent with such treatment with respect to any U.S. federal, state or local Tax.
(b) All Tax Returns of or with respect to the Company have been timely and duly filed and are true, correct and complete in all such tax returns are complete and accurate, material respects and were prepared in substantial compliance with all applicable lawlaws. FDC All Taxes of or with respect to the Company that were due and its subsidiaries payable have been timely paid all taxes due, or claimed to be due by any taxing authority, (regardless of whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which Tax Return as due). The Company is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax returnTax Return. No claim has ever been made by an authority in a jurisdiction where FDC or any of its subsidiaries do in which the Company does not file tax returns Tax Returns that any of them are it is or may be subject to taxation by that jurisdiction. .
(c) There are no security interests on Liens for Taxes upon any of the assets of FDC the Company, except liens for current Taxes not yet due and payable.
(d) All deficiencies asserted as a result of any examination of any Tax Returns or Taxes of the Company have been paid in full or finally settled.
(e) No claims have been asserted and no proposals or deficiencies for any Taxes of its subsidiaries the Company are being asserted, proposed or, to the Knowledge of the Seller Parties, threatened, and no audit or investigation of any Tax Return of the Company is currently underway, pending or, to the Knowledge of the Seller Parties, threatened.
(f) No extension or waiver of the limitation period applicable to any Tax Return of the Company or for an assessment with respect thereto is in effect or has been requested. No power of attorney that arose currently is in connection effect has been granted by the Company with respect to any failure Tax matter. The Company has not received from, and there are no outstanding requests for, rulings, subpoenas, closing agreements, or alleged failure to pay information from any tax. FDC and its subsidiaries have taxing authority.
(g) The Company has withheld and paid all taxes that any of them are Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder member or other third partyparty and the Company has complied with all information reporting requirements with respect thereto. No actionThe Company has properly collected and remitted sales taxes, suituse taxes, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC surtaxes and its subsidiaries have not waived any statute of limitation in respect of similar taxes or agreed to any extension of time with respect to sales made to its customers or has properly received and retained any appropriate tax exemption certificates and other documentation for all sales made without charging or remitting sales taxes, use taxes, surtaxes or similar taxes that qualify such sales as exempt from sales taxes, use taxes, surtaxes and similar taxes.
(h) The Company is not a tax assessment party to any joint venture, partnership, other arrangement or deficiency. FDC and its subsidiaries Contract which could be treated as a partnership for U.S. federal income Tax purposes.
(i) The Company has not made an election to have any provision of the Bipartisan Budget Act of 2015 and Sections 6221-6231 of the Code (and the Treasury Regulations promulgated thereunder), as amended thereunder, apply to the Company for taxable years beginning before January 1, 2018.
(j) None of the Interests are or were intended to qualify as “profits interests” within the meaning of Revenue Procedure 93-27, 1993-2 C.B. 343, as clarified by Revenue Procedure 2001-43, 2001-2 C.B. 191.
(k) The Company is not subject to income Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment or other place of business in such country.
(l) The Company (i) is not a party to any Tax allocation or Tax sharing, allocation, indemnification or similar agreement or arrangement that obligates it to make any payment computed by reference to the Taxes, taxable income or taxable losses of any Person; (ii) has never been a member of an affiliated group filing that joins together to file a consolidated federal income tax return other than the affiliated group of which FDC is the parent, Tax Return; and (iiiii) have has no liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesthe Company) under Treas. ▇▇▇.▇▇.
1. 1502U.S. Treasury Regulation section 1.1502-6 (or any similar provision of state, local local, or foreign law), as a transferee or successor, by contract contract, or otherwise.
(m) The Company has not participated in a “reportable transaction,” within the meaning of Section 6707A(c)(1) of the Code and Section 1.6011-4(b)(1) of the Treasury Regulations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Repay Holdings Corp)
Tax Returns; Taxes. FDC (a) The Company is classified as a corporation for U.S. federal income tax purposes. Except as would not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries Subsidiaries have timely filed all tax returns Tax Returns required to be filed, and have timely paid all Taxes that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquentpayable, except for any taxes and assessments (i) the amount of those which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently are being contested in good faith by appropriate proceedings diligently conducted and with respect to for which FDC or a subsidiary, as the case may be, has established adequate reserves have been provided in accordance with GAAP, applied on a consistent basis during the periods involved in the Company SEC Documents. There are no Liens with respect to Taxes upon any Company Entity’s assets other than Permitted Liens. There is no basis for written proposed Tax assessment or, to the knowledge of the Company Entities, any other taxproposed Tax assessment against the Company or any Subsidiary that would, assessmentif made, interest payment or penalty that could have be reasonably expected to be material to the Company Entities, taken as a Material adverse effectwhole. The charges, accruals Company is not and reserves on has never been a United States real property holding corporation within the books meaning of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(kCode Section 897 (“USRPHC”), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. .
(b) There are no security interests on pending tax audits or other administrative proceedings or any currently pending court Actions, in each case, concerning any Tax liability of the assets Company Entities for which written notice has been received.
(c) Each of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing the Company Entities is not a party to any employeeTax sharing or Tax allocation agreement, independent contractor, creditor, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency. FDC and its subsidiaries than agreements (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than to which the affiliated group of which FDC is Company Entities are the parent, and only parties or (ii) have entered into in the Ordinary Course of Business the primary purpose of which is not Taxes. Each of the Company Entities has no liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesthe Company Entities) under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwiseotherwise (except for agreements entered into in the Ordinary Course of Business the primary purpose of which is not Taxes).
(d) No closing agreements, private letter rulings, Tax holidays, technical advice memoranda or similar agreements or rulings related to Taxes have been entered into, issued by or requested from any Governmental Authority with or in respect of the Company Entities, in each case, with respect to any taxable period for which the statute of limitations has not expired.
(e) One or more Subsidiaries of the Company is a company operating under an IMMEX Program, pursuant to the applicable provisions of the Mexican Income Tax Act applicable to maquiladora companies, with a VAT Certification modality AAA, and other applicable provisions and regulations specific to maquiladoras, in accordance with Mexican customs and foreign trade regulations. Such Company Entity is in all material respects compliant and in good standing with its IMMEX Program, and VAT Certification, including without limitation, periodic reports, inventory control system, wastes and disposals. At Closing, the IMMEX Program, VAT Certification, permit to import steel to Mexico and other material permits, authorizations, registries and licenses required to conduct the operations of such Company Entity in Mexico are valid, in force and to the best of the Company’s knowledge not threatened with revocation or cancellation. Such Company Entity is not in possession of any other personal tangible property and assets, except for those owned by the Company Entity and that are duly registered in its accounting books, and those assets that are imported into Mexico under the Company Entity’s IMMEX Program.
Appears in 1 contract
Sources: Securities Purchase Agreement (FreightCar America, Inc.)
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor 3.14:
(a) all income Tax Returns and all material non-income Tax Returns required to be filed by or with respect to any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC Company Group Member or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets and properties of FDC any Company Group Member with any Governmental Entity in accordance with any applicable Law have been timely and duly filed, and all such Tax Returns are true, correct and complete in all material respects;
(b) all material Taxes required to be paid by or with respect to any Company Group Member or with respect to any of the assets and properties of any Company Group Member (whether or not shown as due and owing on any Tax Return) have been timely paid in full;
(c) all deficiencies for, or adjustments in respect of, Taxes that have been claimed, proposed, asserted or assessed by any Governmental Entity as a result of any audit or other examination of any Tax Returns of any Company Group Member or with respect to the assets and properties of any Company Group Member, or otherwise, have been paid, accrued on the books, as appropriate, of the relevant Company Group Member, or finally settled and no jurisdiction (whether within or without the United States) in which any Company Group Member has not filed a particular type of Tax Return or paid a particular type of Tax has asserted in writing that such Company Group Member is required to file such Tax Return or pay such type of Tax in such jurisdiction;
(d) no deficiencies for, or adjustments in respect of, any Taxes of any Company Group Member or the Company Group or any Taxes of its subsidiaries that arose any other Person, including Sellers and their Affiliates, for which any Company Group Member could be held liable, including any liability pursuant to Section 1.1502-6 of the Treasury Regulations (or any similar provision of federal, state, local or non-U.S. applicable Law), are being claimed, assessed, asserted or proposed in writing or, to the Knowledge of Parent or Sellers, threatened by any Governmental Entity, and no claim, audit, examination, Action, or investigation of any Tax Return or concerning any Tax liability of any Company Group Member is ongoing, pending, proposed or, to the Knowledge of Parent or Sellers, pending or threatened by any Governmental Entity;
(e) each Company Group Member has timely withheld or collected and reported and paid over to the appropriate Governmental Entity all material Taxes required to have been withheld or collected and reported and paid, including in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, customer, creditor, equity holder, stockholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability ;
(f) there are no outstanding waivers of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation in respect limitations or Contracts or other agreements by or on behalf of taxes or agreed to any Company Group Member for the extension of time for the assessment of any Taxes or any deficiency thereof, other than routine extensions granted in the Ordinary Course and no written power of attorney with respect to a tax assessment any Taxes of any Company Group Member has been filed or deficiency. FDC and its subsidiaries entered into with any Taxing Authority that is in effect as of the Closing Date;
(g) there are no Liens for Taxes against any asset or properties of any Company Group Member (other than Permitted Liens);
(h) no Company Group Member has any liability for the Taxes of any other Person (except in connection with any Combined Tax Return): (i) have not been a member of an affiliated group filing a consolidated federal income tax return other than the affiliated group of which FDC is the parent, and (ii) have no liability for the taxes of any person (other than FDC and its subsidiaries) under Treas. ▇▇▇.▇▇.
1. 1502pursuant to Section 1.1502-6 of the Treasury Regulations (or any similar provision of federal, state, local or foreign lawnon-U.S. applicable Law), (ii) as a transferee or successor, (iii) by Contract or (iv) otherwise by operation of applicable Law;
(i) neither Buyer nor any Company Group Member will be required to include in any Taxable period (or portion thereof) ending after the Closing Date Taxable income attributable to income of any Company Group Member that accrued in any Pre-Closing Tax Period but was not recognized in such Taxable period as a result of (i) any improper use of any accounting method or a change in accounting method under Section 481 of the Code (or any similar provision of federal, state, local, or non-U.S. applicable Law), (ii) installment sale or open transaction, (iii) the long-term contract method of accounting, (iv) any prepaid amount received or otherwisedeferred revenue recognized on or prior to the Closing Date, (v) any agreement with any Governmental Entity with respect to Tax liabilities (including a “closing agreement” described in Section 7121 of the Code (or any similar provision of federal, state, local or non-U.S. applicable Law)), (vi) an intercompany transaction or excess loss account described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of federal, state, local or non-U.S. applicable Law) or (vii) an election under Section 965(h) of the Code, in each case, with respect to a transaction or agreement entered into, or change or election made, on or prior to the Closing;
(j) No Company Group Member is a party to any Tax sharing, Tax indemnification, or Tax allocation agreement with any party relating to allocating, indemnifying, or sharing the payment of, or liability for, Taxes (or Tax benefits) (other than by reason of customary provisions in commercial agreements entered into with third parties in the Ordinary Course for the provision of goods and services or pursuant to commercial lending arrangements entered into with third parties, in each case the primary purpose of which does not relate to Taxes) and no Company Group Member has received or applied for a Tax ruling that would be binding upon any Company Group Member after the Closing Date;
(k) no Company Group Member 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 three years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement and no Company Group Member has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2);
(l) no Company Group Member organized under the laws of a country other than the United States (i) has ever been treated as a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or as a U.S. corporation under Section 7874(b) of the Code, or (ii) was created or organized in the United States such that any such entity would be Taxable in the United States as a domestic entity pursuant to the dual charter provision of Treasury Regulations Section 301.7701-5(a);
(m) no Company Group Member organized under the laws of a country other than the United States has elected under Section 897(i) of the Code to be treated as a U.S. corporation;
(n) without regard to anything set forth on the Schedules, the Company is and will be at the Closing Date treated as a partnership for U.S. federal income Tax purposes;
(o) at all times after the Restructuring (which shall be effective prior to the Closing Date), and through the Closing, each Subsidiary of the Company other than Dynisco Parent, Inc. and any Subsidiary of Dynisco Parent, Inc. will be treated and properly classified as an entity disregarded as separate from the Company for U.S. federal income Tax purposes and will be so treated and classified as of the Closing Date;
(p) Schedule 3.14(p) sets forth any loans, notes or other advances between Company Group Members as of the date hereof; and
(q) Schedule 3.14(q) sets forth any election under Treasury Regulation Section 301.7701-3(c) that has been made with respect to any non-U.S. Company Group Member and is in effect at the time of this Agreement. References to any Company Group Member shall include any predecessor or successor thereof for purposes of this Section 3.14. The representations and warranties made in this Section 3.14 and, to the extent applicable, Section 3.17 are the exclusive representations and warranties of Sellers with respect to Taxes. Sellers make no representation or warranty with respect to (i) Taxes of the Company Group for any period (or portion thereof) following the Closing (except the representations and warranties set forth in Section 3.14(i), (j), (n) or (o) and (ii) the existence, availability, amount, usability or limitations (or lack thereof) of any net operating loss, net operating loss carryforward, business interest carryforward, capital loss, capital loss carryforward, basis amount or other tax attribute (whether federal, state, local or non-U.S.) of any entity within the Company Group in each case existing prior to the transactions contemplated by this Agreement.
Appears in 1 contract
Tax Returns; Taxes. FDC Except as otherwise disclosed on Section 3.13 of the Company Disclosure Schedules:
(a) all income and its subsidiaries other material Tax Returns of the Company required to be filed with any Governmental Entity in accordance with any applicable Law have been duly and timely filed (taking into account extensions of time for filing) and are true, correct and complete in all tax returns that material respects;
(b) all income and other material Taxes due and owing by any of the Company have been timely paid in full;
(c) there are not currently any extensions of time in effect with respect to the dates on which any Tax Returns of the Company were or are due to be filed;
(d) no claims for additional unpaid Taxes have been asserted in writing within the last three (3) years and no proposals or deficiencies for any Taxes of the Company are currently being asserted, proposed or, to the Knowledge of the Company, threatened, and no audit or investigation of any Tax Return of the Company is currently underway, pending or, to the Knowledge of the Company, threatened;
(e) the Company has withheld and paid over to the appropriate Governmental Entity, all material Taxes required to have been filed in any jurisdiction, and all such tax returns are complete and accurate, and were prepared in compliance with applicable law. FDC and its subsidiaries have paid all taxes due, or claimed to be due by any taxing authority, whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax return. No claim has been made by an authority in a jurisdiction where FDC or any of its subsidiaries do not file tax returns that any of them are or may be subject to taxation by that jurisdiction. There are no security interests on any of the assets of FDC or any of its subsidiaries that arose in connection with any failure or alleged failure to pay any tax. FDC and its subsidiaries have withheld and paid all taxes that any of them are required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder unitholder or other third party. No action, suit, proceeding, audit, investigation, assessment, dispute ;
(f) there are no outstanding waivers or claim concerning agreements by or on behalf of the Company for the extension of time for the assessment of any tax liability of FDC Taxes or any of its subsidiaries deficiency thereof and the Company has been claimed or raised by any taxing authority. FDC and its subsidiaries have not waived any statute of limitation limitations in respect of taxes or agreed Taxes;
(g) there are no Liens for Taxes against any asset of the Company (other than Permitted Liens);
(h) the Company is not a Party to any extension Tax allocation, indemnification or sharing agreement under which the Company will have any liability for Taxes after the Closing (excluding customary indemnification provisions contained in commercial agreements entered into in the Ordinary Course the primary subject of time with respect to a tax assessment or deficiency. FDC and its subsidiaries which is not Taxes);
(i) have the Company has not been a member of an affiliated group filing a consolidated U.S. federal income tax return other than the affiliated group of which FDC is the parent, Tax Return and (ii) does not have no any material liability for the taxes Taxes of any person (other than FDC and its subsidiaries) Person under Treas. ▇▇▇.▇▇.
1. 1502Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign lawLaw), as a transferee or successor, or by contract (excluding customary indemnification provisions contained in commercial agreements entered into in the Ordinary Course the primary subject of which is not Taxes);
(j) the Company has not been a party to any “listed transaction,” as defined in Treasury Regulations Section 1.6011-4(b)(2);
(k) no written claim has ever been made by any Governmental Entity in a jurisdiction where the Company does not file Tax Returns that the Company may be subject to taxation by, or otherwiserequired to file a Tax Return in, that jurisdiction;
(l) the Company is, and has been at all times since its formation, treated as a partnership (and not as a publicly traded partnership) for U.S. federal (and applicable state and local) income Tax purposes;
(m) the Company will not be required to include any material item of income in, or exclude any material deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting, or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income tax Law) executed on or prior to the Closing Date; (iii) intercompany transactions as described in Treasury Regulations Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign income tax Law) or excess loss account described in Treasury Regulations Section 1.1502-19 (or any corresponding or similar provision of state, local or foreign income tax Law), in each case, entered into or created on or prior to the Closing Date; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; (v) prepaid amount received or deferred revenue accrued on or prior to the Closing Date, other than amounts reflected on the Financial Statements and amounts accrued in the Ordinary Course since then; or (vi) election described in Section 108(i) of the Code (or any corresponding or similar provision of state, local or foreign Law);
(n) during the two (2)-year period ending on the date of this Agreement, the Company has not distributed the stock or membership interests of another Person, and has not had its stock or membership interest distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code);
(o) the Company has not had a permanent establishment (within the meaning of an applicable Tax treaty or convention between the United States and such foreign country), or otherwise been subject to taxation in any country other than the country of the Company’s formation; and
(p) the Company has not and, to the Knowledge of the Company, the Company Unitholders have not, taken or agreed to take any action not contemplated by this Agreement that would reasonably be expected to prevent the exchanges pursuant to the Merger from qualifying for the Intended Tax Treatment.
Appears in 1 contract
Sources: Merger Agreement (Power & Digital Infrastructure Acquisition II Corp.)
Tax Returns; Taxes. FDC and its subsidiaries have timely filed all tax returns that are required to Except as otherwise disclosed in Schedule 2.14:
(a) There have been no entity classification elections filed in pursuant to Treasury Regulations Section 301.7701-3 (or any jurisdictionanalogous provision of state or local income Tax Law) with respect to the Company. The Company is classified, and since the date of its formation has been classified, as a partnership for U.S. federal, state and local income Tax purposes, and none of the Seller Parties or the Company has taken a position inconsistent with such treatment with respect to any U.S. federal, state or local Tax.
(b) All Tax Returns of or with respect to the Company have been timely and duly filed and are true, correct and complete in all such tax returns are complete and accurate, material respects and were prepared in substantial compliance with all applicable lawLaws. FDC All Taxes of or with respect to the Company that were due and its subsidiaries payable have been timely paid all taxes due, or claimed to be due by any taxing authority, (regardless of whether or not shown on a tax return, and FDC and its subsidiaries have paid all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which Tax Return as due). The Company is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which FDC or a subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. There is no basis for any other tax, assessment, interest payment or penalty that could have a Material adverse effect. The charges, accruals and reserves on the books of FDC and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate in all respects. Except as set forth on Schedule 3(k), neither FDC nor any of its subsidiaries is currently the beneficiary of any extension of time within which to file any tax returnTax Return. No claim has ever been made by an authority in a jurisdiction where FDC or any of its subsidiaries do in which the Company does not file tax returns Tax Returns that any of them are it is or may be subject to taxation by that jurisdiction. .
(c) There are no security interests on Liens for Taxes upon any of the assets of FDC the Company, except liens for current Taxes not yet due and payable.
(d) All deficiencies asserted as a result of any examination of any Tax Returns or Taxes of the Company have been paid in full or finally settled, and no issue has been raised in any such examination which, by application of its subsidiaries the same or similar principles, reasonably could be expected to result in a proposed deficiency for any other period not so examined.
(e) No claims have been asserted and no proposals or deficiencies for any Taxes of the Company are being asserted, proposed or, to the Knowledge of the Seller Parties, threatened, and no audit or investigation of any Tax Return of the Company is currently underway, pending or, to the Knowledge of the Seller Parties, threatened.
(f) No extension or waiver of the limitation period applicable to any Tax Return of the Company or for an assessment with respect thereto is in effect or has been requested. No power of attorney that arose currently is in connection effect has been granted by the Company with respect to any failure Tax matter. The Company has not received from, and there are no outstanding requests for, rulings, subpoenas, closing agreements, or alleged failure to pay information from any tax. FDC and its subsidiaries have taxing authority.
(g) The Company has withheld and paid all taxes that any of them are Taxes required to withhold have been withheld and pay paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder member or other third partyparty and the Company has complied with all information reporting requirements with respect thereto. No actionThe Company has properly collected and remitted sales taxes, suituse taxes, proceeding, audit, investigation, assessment, dispute or claim concerning any tax liability of FDC or any of its subsidiaries has been claimed or raised by any taxing authority. FDC surtaxes and its subsidiaries have not waived any statute of limitation in respect of similar taxes or agreed to any extension of time with respect to sales made to its customers or has properly received and retained any appropriate tax exemption certificates and other documentation for all sales made without charging or remitting sales taxes, use taxes, surtaxes or similar taxes that qualify such sales as exempt from sales taxes, use taxes, surtaxes and similar taxes.
(h) The Company is not a tax assessment party to any joint venture, partnership, other arrangement or deficiency. FDC and its subsidiaries Contract which could be treated as a partnership for U.S. federal income Tax purposes.
(i) The Company has not made an election to have any provision of the Bipartisan Budget Act of 2015 and Sections 6221-6231 of the Code (and the Treasury Regulations promulgated thereunder), as amended thereunder, apply to the Company for taxable years beginning before January 1, 2018.
(j) Within the meaning of Treasury Regulation Section 1.1445-11T(d), neither (i) 50% or more of the value of the gross assets of the Company consists of “United States real property interests” under Section 897 of the Code, nor (ii) 90% or more of the value of the gross assets of the Company consists of U.S. real property interests plus cash or cash equivalents.
(k) None of the Interests are intended to qualify as “profits interests” within the meaning of Revenue Procedure 93-27, 1993-2 C.B. 343, as clarified by Revenue Procedure 2001-43, 2001-2 C.B. 191.
(l) The Company is not subject to income Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment or other place of business in such country.
(m) The Company (i) is not a party to any Tax allocation or Tax sharing, allocation, indemnification or similar agreement or arrangement that obligates it to make any payment computed by reference to the Taxes, taxable income or taxable losses of any Person; (ii) has never been a member of an affiliated group filing that joins together to file a consolidated federal income tax return other than the affiliated group of which FDC is the parent, Tax Return; and (iiiii) have has no liability for the taxes Taxes of any person Person (other than FDC and its subsidiariesthe Company) under Treas. ▇▇▇.▇▇.
1. 1502U.S. Treasury Regulation section 1.1502-6 (or any similar provision of state, local local, or foreign law), as a transferee or successor, by contract contract, or otherwise.
(n) The Company has not participated in a “reportable transaction,” within the meaning of Section 6707A(c)(1) of the Code and Section 1.6011-4(b)(1) of the Treasury Regulations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Repay Holdings Corp)