Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply. (b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements. (c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid. (d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary. (e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws. (f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction. (g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation. (h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law). (i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 6 contracts
Sources: Share Subscription Agreement (Uxin LTD), Share Subscription Agreement (NIO Capital II LLC), Share Subscription Agreement (Uxin LTD)
Tax. The Company (ai) All has prepared and filed all foreign, federal and state income and all other Tax returns, Tax reportsreports and declarations required by any jurisdiction to which it is subject, information returns, declarations of estimated Tax (ii) has paid all Taxes and other declarations governmental assessments and statements with respect to Taxes (collectivelycharges that are material in amount, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for such returns, reports and declarations, except those being contested in good faith, with respect to which adequate reserves have been set aside on the books of the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have (iii) has set aside on its books provision provisions reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns returns, reports or declarations apply.
, except, in the case of clauses (bi) Except and (ii) above, where the failure to so pay or file any such unpaid Tax Tax, assessment, charge or return would not have a Material Adverse Effectreasonably be expected to be material to the Company and the Company Subsidiaries. Other than in connection with accrued state sales taxes that may be owed, there are no unpaid Taxes taxes in any material amount claimed in writing to be due by the Taxing taxing authority of any jurisdiction, and the officers of . No (x) U.S. federal tax audits or (y) administrative or judicial Tax proceedings with respect to U.S. federal tax are pending or being conducted with respect to the Company and each Subsidiary know of no basis for any such claimor the Company Subsidiaries. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary the Company Subsidiaries is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened bound by any Taxing authority, for Tax allocation or sharing agreement other than customary agreements the assessment or collection primary purpose of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition which is unrelated to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) . Neither the Company nor any Subsidiary the Company Subsidiaries (A) has been a member of an "affiliated group of corporations within the meaning of Section 1504(a) of the Code group" filing a combined consolidated federal income Tax return (other than a group the common parent of which was Company) or any similar provision of non-U.S., state or local Law(B) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than the Company and the Company Subsidiaries) under Treasury Regulations § Regulation Section 1.1502-6 (or any similar provision of state, local, or non-U.S.U.S. law), state as a transferee or local Lawsuccessor, otherwise by operation of Law or by contract. Within the last two (2) or otherwiseyears, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither neither the Company nor any Subsidiary the Company Subsidiaries has engaged distributed stock of another Person, or has had its stock distributed by another Person, in any a transaction that could give rise was purported or intended to a disclosure obligation as a “reportable transaction” under Section 6011 of the be governed in whole or in part by Code and Treasury Regulations promulgated thereunder (§355 or any similar provision of non-U.S., state or local Law).
(i) Code §361. The Company ishas given the Investors an opportunity to review correct and complete copies of all Tax Returns filed with respect to taxable periods ending after December 31, and has at all times been, classified as a corporation for U.S. federal income tax purposes2013.
Appears in 5 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Rimini Street, Inc.), Securities Purchase Agreement (Rimini Street, Inc.)
Tax. Except as would not reasonably be expected to have a Purchaser Material Adverse Effect:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company Purchaser and each Subsidiary the Purchaser Subsidiaries have been timely filed filed; (taking into account any extensionsii) all Taxes required to be shown on such Tax Returns or otherwise due in respect of the Purchaser and the Purchaser Subsidiaries have been timely paid; (iii) all such Tax Returns are true, correct and complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of in all material Taxes for periods subsequent respects; (iv) no adjustment relating to the periods to which such Tax Returns apply.
has been proposed in writing by any Governmental Authority; (bv) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, Actions for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company Purchaser or the Purchaser Subsidiaries; (vi) there are no Tax liens on any Subsidiary assets of the Purchaser or the Purchaser Subsidiaries; (vii) each of the Purchaser and the Purchaser Subsidiaries has properly and timely withheld, collected and deposited all Taxes that are required to be withheld, collected and deposited under applicable Law; (viii) neither the Purchaser nor any of the Purchaser Subsidiaries is doing business in or engaged in a trade or business in any jurisdiction in which it has not been settled with filed all amounts due having been paid.
required Tax Returns; and (dix) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for neither the Purchaser nor any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Purchaser Subsidiaries has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for the Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group Purchaser or any of which the Company is currently the parent corporation.Purchaser Subsidiaries); and
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(ib) The Company isPurchaser and each Purchaser Subsidiary have, in accordance with applicable Law, duly registered with the relevant Government Authority, obtained and has at maintained the validity of all times beennational and local tax registration certificates and complied with all requirements imposed by such Government Authorities. No submissions made to any Government Authority in connection with obtaining Tax exemptions, classified as a corporation for U.S. federal income tax purposesTax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments or Tax rebates contained any misstatement or omission that would have affected the granting of such Tax exemptions, preferential treatments or rebates. No suspension, revocation or cancellation of any such Tax exemptions, preferential treatments or rebates is pending or, to the Purchaser’s Knowledge threatened.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by Clearwire or with respect to the Company and each Subsidiary any of its Subsidiaries have been timely filed (taking into account any extensions) filed, and all such those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes its Subsidiaries (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for those Taxes the failure of being contested in good faith and for which to pay would not adequate reserves have a Material Adverse Effectbeen established in Clearwire’s Financial Statements. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payablethat may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not disputed, and due) for all periods to and including material Taxes since the dates date of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for most recent balance sheet included in the assessment or collection Clearwire Financial Statements other than in the ordinary course of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidbusiness.
(d) No lien Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has been filed and no deficiency entered into any waivers or addition to Taxes, interest or penalties for any Taxes extensions of the statute of limitations with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiarymaterial Taxes.
(e) The Company and each Subsidiary Clearwire has complied no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in all material respects with all Applicable Laws relating the aggregate, reasonably be expected to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawshave a Clearwire Material Adverse Effect.
(f) No claimExcept as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionother third parties.
(g) Neither the Company Clearwire nor any Subsidiary of its Subsidiaries has been a member entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of an affiliated group of corporations which was tax avoidance, within the meaning of Section 1504(a) Sections 6011, 6111 or 6112 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does and the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (thereunder or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationhas received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Neither Except as set forth in Section 6.7(h) of the Company nor any Clearwire Disclosure Schedule, each Subsidiary has engaged in any transaction that could give rise to a disclosure obligation of Clearwire is either (x) treated as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any similar provision of non-U.S.its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), state or local LawSection 1.1(c) and this Section 6.7(h).
(i) The Company isExcept as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and has at other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all times beenmaterial respects, classified as a corporation the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposespurposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Sources: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (Clearwire Corp)
Tax. (a) None of the Sprint Assets is subject to any material Encumbrances for Taxes except for liens for Taxes not yet due and payable.
(b) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by Sprint or any of its Subsidiaries with respect to the Company Sprint Assets and each Subsidiary the business in which the Sprint Assets have been used have been timely filed (taking into account any extensions) and all such those Tax Returns are true, complete and accurate correct in all material respects.
(c) All material Taxes owed by Sprint and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes its Subsidiaries (whether or not shown on any Tax Return) for with respect to the Sprint Assets and the business in which the Company or any Subsidiary may be liable Sprint Assets have been timely used have been paid, except for those Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, being contested in good faith and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has which adequate reserves have been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidestablished in Sprint’s Financial Statements.
(d) No lien There is no currently pending audit or administrative or judicial proceeding with respect to Taxes has relating to the Sprint Assets and the business in which the Sprint Assets have been filed and no deficiency used. Neither Sprint Sub LLC nor any of the Transfer Entities is or addition by virtue of the LLC Contribution will be (i) a party to Taxesor bound by any material closing agreement, interest offer in compromise, gain recognition agreement or penalties for any Taxes other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) a party to any waivers or extensions of the statute of limitations with respect to any income, properties or operations material Taxes (in each case other than with respect to Taxes that are the subject of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiaryindemnification provided in Section 13.1 hereof).
(e) The Company and each Subsidiary Sprint has complied in all material respects no Knowledge of any proposed or threatened Tax claims or assessments with all Applicable Laws relating respect to the Sprint Assets and the business in which the Sprint Assets have been used that, if upheld, would result in the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries a material amount of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable LawsTax.
(f) No claim, or notice of claim, has ever Sprint and its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been made by an authority withheld and paid in a jurisdiction where connection with Sprint Assets and the Company or a Subsidiary does not file Tax Returns that business in which the Company or such Subsidiary is or may be subject to taxation by that jurisdictionSprint Assets have been used.
(g) Neither the Company Sprint nor any Subsidiary has of its Subsidiaries has, with respect to the Sprint Assets and the business in which the Sprint Assets have been a member used, entered into, or otherwise participated (directly or indirectly) in, any “listed transaction” or any reportable transaction the principal purpose of an affiliated group of corporations which was tax avoidance within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (Sections 6011, 6111 or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 6112 of the Code and the Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 4 contracts
Sources: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (Clearwire Corp)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect The Sold Entities (i) have timely filed or caused to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely be filed (taking into account any extensionsextension of time to file granted or obtained) all material Tax Returns required to be filed by or on behalf of them and all such filed Tax Returns are true, correct and complete in all material respects; and accurate (ii) have timely paid all material amounts of Taxes due and disclose all payable except, in each case, to the extent that such Taxes required to be paid by are being contested in good faith or are adequately reserved in accordance with IFRS; provided, that no representation is made with respect to the Company and each Subsidiary for the periods covered thereby, except for accuracy of any such filed Tax Returns the failure of which Return with respect to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent information reported to the periods Sold Entities by the Partnership on Schedule K-1 (IRS Form 1065). There are no material liens with respect to which such Tax Returns applyTaxes upon any asset of the Sold Entities, other than liens for current Taxes not yet due and payable.
(b) Except where such unpaid Tax would not Other than with respect to items of Partnership income, gain, loss, deduction or credit (or other items reported to its partners on Schedule K-1 (IRS Form 1065)), no material deficiencies for any Taxes have a Material Adverse Effect, there are no unpaid Taxes claimed been proposed in writing or assessed against or with respect to be due by any of the Taxing authority of any jurisdictionSold Entities, and the officers there is no outstanding audit, assessment, dispute or claim pending or threatened in writing concerning any material Tax Liability of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsSold Entities.
(c) Neither None of the Company nor Sold Entities has received any Subsidiary is a party to any claim, dispute, audit, pending Action written notice or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary inquiry that has not been settled with all amounts due having been paidwithdrawn or resolved from any jurisdiction where such Sold Entity does not currently file Tax Returns to the effect that such filings may be required or that such Sold Entity may be subject to Tax by such jurisdiction.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations None of the Company Sold Entities (i) is a party to, is bound by or has any Subsidiary has been proposedobligation under any Tax sharing or Tax indemnity agreement or similar contract or arrangement, asserted or assessed against the Company or any Subsidiary.
(eii) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
was (g) Neither the Company nor any Subsidiary has been since June 30, 1999), a member of an any consolidated, combined, unitary or affiliated Tax Return group (other than a group consisting solely of corporations within the meaning of Section 1504(a) one or more of the Code filing a combined federal income Tax return Sold Entities), and (or any similar provision of non-U.S., state or local Lawiii) nor does the Company or any Subsidiary of the Company have has any liability for Taxes of any other Person under Treasury Regulations § 1.1502any Law, as transferee or successor, by contract or otherwise.
(e) None of the Sold Entities will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Post-6 Closing Tax Period as a result of any (i) adjustment required by reason of a change in method of accounting for a Pre-Closing Tax Period under Section 481(c) of the Code (or any corresponding or similar provision of non-U.S.state, state local or foreign Tax Law), (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) entered into prior to the Closing, or otherwise(iii) installment sale or intercompany transaction made prior to the Closing, other than except, in each case of clauses (i) through (iii), for any such items arising from any such change in method of accounting, closing agreement, installment sale or intercompany transaction by the consolidated group Partnership.
(f) All material Taxes required to be withheld, collected or deposited by or with respect to any of the Sold Entities have been timely withheld, collected or deposited, as the case may be, and to the extent required, have been paid to the relevant Tax Authority.
(g) Section 3.10(g) of the Vodafone Disclosure Letter specifies any Sold Entity for which an entity classification election pursuant to Treasury Regulation Section 301.7701-3 was made, and with respect to each such election, the Company is currently effective date thereof and the parent corporationclassification elected pursuant thereto.
(h) Neither Within the Company nor any Subsidiary past two (2) years, none of the Sold Entities has engaged in any transaction that could give rise to a disclosure obligation as been a “reportable transactiondistributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 6011 355(a) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Code.
(i) The Company is, and None of the Sold Entities has at all times been, classified as a corporation for U.S. federal income tax purposesparticipated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Vodafone Group Public LTD Co), Stock Purchase Agreement (Verizon Communications Inc)
Tax. Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Governmental Authority by or with respect to the Company and each Subsidiary on behalf of Parent or any of its Subsidiaries have been timely filed when due (taking into account any extensionsextension of time within which to file); (ii) and all such Tax Returns are true, accurate and complete and accurate and disclose have been prepared in compliance with all applicable Laws; (iii) all Taxes due and payable by Parent or any of its Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid by or with respect to the Company and each Subsidiary for the periods covered therebyowing to, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on received or owing from, any Tax Returnemployee, creditor, independent contractor or other Third Party) for which the Company or any Subsidiary may be liable have been timely paidpaid (or collected or withheld and remitted) to the appropriate Governmental Authority, except for Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in accordance with GAAP in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent Parent SEC Documents filed prior to the periods to which such Tax Returns apply.
date of this Agreement; (biv) Except where such unpaid Tax would not have a Material Adverse Effectsince January 1, there are 2018, no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no written claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Authority in a jurisdiction where the Company Parent or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return of a particular type that the Company Parent or such Subsidiary any of its Subsidiaries is or may be subject to taxation by Tax, or required to file Tax Returns, of such type in that jurisdiction., other than any such claims that have been fully resolved; and (v) there are no Encumbrances on any of the assets of Parent or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(gb) Neither each of Parent and its Subsidiaries has complied with all applicable Laws relating to the Company withholding of Taxes and has, within the time and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(c) no outstanding written claim has been received by, and no audit, action, or proceeding is in progress or threatened in writing, against or with respect to Parent or any of its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) neither Parent nor any Subsidiary of its Subsidiaries (i) has been a member any Liability for the Taxes of an affiliated group any Person (other than Parent or any of corporations within the meaning of its Subsidiaries) under Section 1504(a) 1.1502-6 of the Code filing a combined federal income Tax return Treasury Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) nor does the Company is a party to any Tax sharing, allocation or indemnification agreement or arrangement (other than (x) any agreement or arrangement solely among Parent or any Subsidiary of its Subsidiaries, or (y) commercial agreements or arrangements entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes), (iii) has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Code (or any similar provision of non-U.S.state, state local or local Lawforeign law) or otherwise(iv) is, or since January 1, 2018 has been, a member of any affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other than a group the consolidated group common parent of which the Company is currently the parent corporation.Parent or any of its Subsidiaries);
(he) Neither no waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries (other than extensions of time to file Tax Returns obtained automatically in the Company ordinary course of business);
(f) neither Parent nor any Subsidiary of its Subsidiaries has engaged participated in any transaction that could give rise to a disclosure obligation as a “reportable listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations; and
(g) during the five-year period ending on the date of this Agreement, neither Parent nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 6011 355(a) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Code.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Merger Agreement (Cco Holdings LLC), Merger Agreement (Liberty Broadband Corp), Merger Agreement (Charter Communications, Inc. /Mo/)
Tax. (a) All Each Group Company has within the time and in the manner prescribed by law:
(i) duly filed with the appropriate taxing authorities all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the relevant Group Company and each Subsidiary have been timely filed (taking into account any extensions) or with respect to their assets, and all such Tax Returns are true, correct and complete and accurate and disclose in all material respects;
(ii) timely paid in full all Taxes required shown to be paid by due on such Tax Returns or otherwise due and payable with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the relevant Group Company or any Subsidiary may be liable have been timely paidthe assets of the relevant Group Company; and
(iii) complied with all applicable laws, except for rules and regulations relating to the withholding of Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applywithheld Taxes.
(b) Except where such unpaid The Tax would Returns referred to in paragraph (a) above are not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by currently the Taxing authority subject of any jurisdiction, audit or other proceeding by a tax administration or any local or foreign Governmental Authority and no such audit or proceeding is threatened against the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsrelevant Group Company.
(c) Neither There are no Encumbrances for Taxes upon the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection assets of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidGroup Company.
(d) No lien with respect to Taxes Group Company has been filed and no received any notice of deficiency or addition to Taxesassessment from any national, interest local or penalties for any Taxes foreign Governmental Authority with respect to any income, properties liability for Taxes or operations with respect to its business or the assets of the relevant Group Company, which liability has not been fully paid or finally settled. No administrative, judicial or other proceeding is presently pending with respect to any Taxes or Tax Returns of any Group Company or with respect to the business or the assets of any Subsidiary has been proposed, asserted or assessed against the Company or any SubsidiaryGroup Company.
(e) The All necessary information, notices, accounts, statements, reports, computations, assessments and returns which ought to have been made or given, have been properly and duly submitted by each Group Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment tax authorities and withholding all information, notices, computations, assessments and returns submitted to the tax authorities are true and accurate and are not the subject of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws any dispute with a value in excess of RUB 40,000,000 (forty million roubles) nor are likely to be withheld and paid from become the wages or salaries subject of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply dispute with a value in excess of RUB 40,000,000 (forty million roubles) with such Applicable Lawsauthorities.
(f) No claim, All Taxation of any nature whatsoever for which any Group Company is liable to account has been duly paid (insofar as such Taxation ought to have been paid) and without prejudice to the generality of the foregoing each Group Company has made all such deductions and retentions as it was obliged or notice of claim, has ever entitled to make and all such payments as should have been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionmade.
(g) Neither the No Group Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning past twenty-four months received any notice of Section 1504(a) of enquiry or suffered any enquiry, investigation audit or visit by the Code filing a combined federal income Tax return tax authorities (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than an audit visit made by the consolidated group tax authorities in the Ordinary Course of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local LawBusiness).
(i) The Company is, and has at all times beenno such enquiry, classified investigation audit or visit, so far as a corporation the Investor is aware, is planned for U.S. federal income tax purposesthe next twelve months.
Appears in 3 contracts
Sources: Deed of Subscription (Otkritie Investments Cyprus LTD), Deed of Subscription (Qiwi), Deed of Subscription (Otkritie Investments Cyprus LTD)
Tax. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Governmental Authority by or with respect to on behalf of the Company and each Subsidiary or any of its Subsidiaries have been timely filed when due (taking into account any extensionsextension of time within which to file); (ii) and all such Tax Returns are true, accurate and complete and accurate and disclose have been prepared in compliance with all applicable Laws; (iii) all Taxes required to be paid due and payable by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may of its Subsidiaries (including any Taxes that are required to be liable collected, deducted or withheld in connection with any amounts paid or owing to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been timely paidpaid (or collected or withheld and remitted) to the appropriate Governmental Authority, except for Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in accordance with GAAP in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent SEC Documents filed prior to the periods to which such Tax Returns apply.
date of this Agreement; (biv) Except where such unpaid Tax would not have a Material Adverse Effectsince January 1, there are 2018, no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no written claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Authority in a jurisdiction where the Company or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return of a particular type that the Company or such Subsidiary any of its Subsidiaries is or may be subject to taxation by Tax, or required to file Tax Returns, of such type in that jurisdiction., other than any such claims that have been fully resolved; and (v) there are no Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(gb) Neither each of the Company and its Subsidiaries has complied with all applicable Laws relating to the withholding of Taxes and has, within the time and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(c) no outstanding written claim has been received by, and no audit, action, or proceeding is in progress or threatened in writing, against or with respect to the Company or any of its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments asserted against the Company or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) neither the Company nor any Subsidiary of its Subsidiaries (i) has been a member any Liability for the Taxes of an affiliated group any Person (other than the Company or any of corporations within the meaning of their respective Subsidiaries) under Section 1504(a) 1.1502-6 of the Code filing a combined federal income Tax return Treasury Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) nor does is a party to any Tax sharing, allocation or indemnification agreement or arrangement (other than (x) any agreement or arrangement solely among the Company or any Subsidiary of their respective Subsidiaries, or (y) commercial agreements or arrangements entered into in the ordinary course, the primary subject matter of which does not relate to Taxes), (iii) has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Code (or any similar provision of non-U.S.state, state local or local Lawforeign law) or otherwise(iv) is, or since January 1, 2018 has been, a member of any affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other than a group the consolidated group common parent of which is the Company or any of their respective Subsidiaries);
(e) no waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment or deficiency is currently in effect for the parent Company or any of its Subsidiaries (other than extensions of time to file Tax Returns obtained automatically in the ordinary course of business);
(f) neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations;
(g) during the five-year period ending on the date of this Agreement, neither the Company nor any of its Subsidiaries has been either a “distributing corporation.” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 355(a) of the Code; and
(h) Neither no amounts are reasonably expected to be payable to Qurate or any other Person by the Company nor or any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation of its Subsidiaries as a result of obligations arising pursuant to the Tax Sharing Agreement, dated as of March 9, 2018 (the “reportable transaction” under Section 6011 Qurate TSA”), between Qurate and Grizzly Merger Sub 1, LLC, a Delaware limited liability company (successor to GCI Liberty, Inc., a Delaware corporation) (“Grizzly Merger Sub”), and to which the Company became a party pursuant to that certain Assumption and Joinder Agreement to the Tax Sharing Agreement, dated as of August 6, 2020, by and among the Code Company, Grizzly Merger Sub and Treasury Regulations promulgated thereunder (Qurate; the statute of limitations for all material Taxes which are covered by the Qurate TSA are closed and no outstanding written claim has been received and no audit, action, or proceeding is in progress or threatened in writing, for which the Company or any similar provision of non-U.S., state or local Law)its Subsidiaries may reasonably be expected to have liability under the Qurate TSA.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Merger Agreement (Cco Holdings LLC), Merger Agreement (Liberty Broadband Corp), Merger Agreement (Charter Communications, Inc. /Mo/)
Tax. (a) All Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, Parent and each of the Subsidiaries has filed or caused to be filed all U.S. federal, state, local and non-U.S. Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) returns required to have been filed by or with respect to the Company it (including in its capacity as withholding agent) and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete return is true and accurate and disclose all Taxes required correct;
(b) Except as would not, individually or in the aggregate, reasonably be expected to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have result in a Material Adverse Effect. All , Parent and each of the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on the returns referred to in clause (whether a) and all other Taxes or not shown on any Tax Returnassessments (or made adequate provision (in accordance with GAAP) for the payment of all Taxes due), except Taxes or assessments for which the Company Parent or any Subsidiary of the Subsidiaries (as the case may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have be) has set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent reserves in accordance with GAAP and, to the periods extent such Taxes are due and payable pursuant to which such Tax Returns apply.a governmental assessment, the amount thereof is being contested in good faith by appropriate proceedings; and
(bc) Except where such unpaid Tax Other than as would not be, individually or in the aggregate, reasonably expected to have a Material Adverse Effect, as of the Closing Date, with respect to Parent and each of the Subsidiaries, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed claims being asserted in writing with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party respect to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidTaxes.
(d) No lien with respect The Loan Parties are not required to Taxes make any Tax Deduction on account of Tax imposed by the United Kingdom from any payment they may make under any Loan Document to a Lender which is:
(i) a Qualifying Lender:
(A) falling within paragraph (a)(i) of the definition of Qualifying Lender; or
(B) except where a Direction has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations given under section 931 of the Company or any Subsidiary has been proposedITA in relation to the payment concerned, asserted or assessed against falling within paragraph (a)(ii) of the Company or any Subsidiarydefinition of Qualifying Lender; or
(C) falling within paragraph (b) of the definition of Qualifying Lender; or
(D) that is a QPP Lender in respect of which each of the Loan Parties reasonably believes that it is not a connected person for purposes of the QPP Regulations; or
(ii) a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).
(e) The Company and each Subsidiary has complied Under the law of its jurisdiction of incorporation it is not necessary that the Loan Documents be filed, recorded or enrolled with any court or other authority in all material respects with all Applicable Laws relating that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required Loan Documents or the transactions contemplated by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable LawsLoan Documents.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Credit Agreement (Adient PLC), Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Tax. (a) All Seller shall prepare (or cause to be prepared) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or Returns with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid filed after the Closing Date for any Pre-Closing Period on a basis consistent with past practice, except to the extent otherwise required by applicable Law. Reasonably in advance of filing any such Tax Return (which in the case of a Tax Return that relates to Income Taxes, shall not be later than 30 days prior to such filing), Seller shall deliver a copy of such Tax Return, together with all supporting documentation and work papers, to Buyer for its review and reasonable comment. Buyer will cause such Tax Return (as revised to incorporate Buyer’s reasonable comments) to be timely filed and will provide a copy to Seller.
(b) Buyer shall prepare (or cause to be prepared) all Tax Returns with respect to the Company and each Subsidiary required to be filed after the Closing Date for the periods covered therebyany Straddle Period on a basis consistent with past practice, except for to the extent otherwise required by applicable Law. Reasonably in advance of filing any such Tax Returns Return (which in the failure case of which a Tax Return that relates to file would Income Taxes, shall not have be later than 30 days prior to such filing), Buyer shall deliver a Material Adverse Effect. All Taxes (whether or not shown on any copy of such Tax Return) , together with all supporting documentation and workpapers, to Seller for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effectits review and reasonable comment. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which Buyer will cause such Tax Returns apply.
Return (bas revised to incorporate Seller’s reasonable comments) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, timely filed and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods will provide a copy to and including the dates of such financial statementsSeller.
(c) Neither For purposes of determining Seller Taxes with respect to any Straddle Period of the Company, the portion of any Tax for such Straddle Period that is attributable to the portion of such Straddle Period ending on the Closing Date shall be:
(i) with respect to Taxes that are (A) Income Taxes, (B) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible) or (C) imposed on specific transactions, including payroll taxes, deemed equal to the amount that would be payable if the Tax year of the Company nor any Subsidiary is a party to any claimended on the Closing Date; provided, disputethat all exemptions, auditallowances, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, deductions for the assessment Straddle Period which are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated in proportion to the number of days in such period prior to and including the Closing Date; and
(ii) with respect to Property Taxes that are ad valorem, real property, personal property or collection other Property Taxes imposed on a periodic basis, deemed to be the amount of any such Taxes and no claim for the assessment or collection entire period, multiplied by a fraction the numerator of any Taxes has been asserted against which is the Company or any Subsidiary that has not been settled with all amounts due having been paidnumber of calendar days in the portion of the period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire period.
(d) No lien All tax-sharing agreements or similar agreements (excluding, for the avoidance of doubt, any commercial agreements or contracts entered into in the ordinary course of business consistent with past practice and not primarily related to Taxes) with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations involving the Company shall be terminated as of the Company or any Subsidiary has been proposedClosing Date and, asserted or assessed against after the Closing Date, the Company shall not be bound thereby or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationthereunder.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Membership Interest Purchase and Sale Agreement (Targa Resources Partners LP), Membership Interest Purchase and Sale Agreement (Targa Resources Corp.), Membership Interest Purchase and Sale Agreement (Targa Resources Corp.)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to Seller Entities have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and with the appropriate Taxing authorities all material Tax Returns in all jurisdictions in which such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company filed, and each Subsidiary for the periods covered thereby, except for such Tax Returns are correct and complete in all material respects. None of the failure Seller Entities is the beneficiary of any extension of time within which to file would not have a Material Adverse Effectany Tax Return (other than any extensions to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes of the Seller Entities (whether or not shown on any Tax Return) that are due have been fully and timely paid. There are no Liens for which Taxes (other than a Lien for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings) on any of the Company Assets of any of the Seller Entities. No claim has been made in the last six years in writing by an authority in a jurisdiction where any Seller Entity does not file a Tax Return that such Seller Entity is or any Subsidiary may be liable have been timely paid, except for subject to Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyby that jurisdiction.
(b) Except where such unpaid Tax would not have a Material Adverse EffectNone of the Seller Entities has received any written notice of assessment or proposed assessment in connection with any amount of Taxes, and there are no unpaid threatened in writing or pending disputes, claims, audits or examinations regarding any Taxes claimed to be due by the Taxing authority of any jurisdiction, and Seller Entity or the officers Assets of any Seller Entity. None of the Company and each Subsidiary know Seller Entities has waived any statute of no basis for limitations in respect of any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary Each Seller Entity has complied in all material respects with all Applicable applicable Laws relating to the payment and withholding of TaxesTaxes and the payment thereof to appropriate authorities, including sales and use Taxes, and has Taxes required to have been withheld and paid over all in connection with amounts paid or owing to any employee or independent contractor, and Taxes required by Applicable Laws to be withheld and paid from pursuant to Sections 1441 and 1442 of the wages Internal Revenue Code or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawssimilar provisions under foreign Law.
(fd) No claimThe unpaid Taxes of each Seller Entity (i) did not, or notice as of claimthe most recent fiscal month end, has ever been made by an authority materially exceed the reserve for Tax Liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in a jurisdiction where any notes thereto) for such Seller Entity and (ii) do not exceed that reserve as adjusted for the Company or a Subsidiary does not file passage of time through the Closing Date in accordance with past custom and practice of the Seller Entities in filing their Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionReturns.
(ge) Neither None of the Company nor Seller Entities is a party to any Subsidiary Tax indemnity, allocation or sharing agreement (other than any agreement solely between the Seller Entities and other than any customary Tax indemnifications contained in credit or other commercial agreements the primary purpose of which agreements does not relate to Taxes) and none of the Seller Entities has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of corporations which was Seller) or has any Tax Liability of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law (other than the other members of the consolidated group the common parent of which is or was Seller), or as a transferee or successor.
(f) During the two-year period ending on the date hereof, none of the Seller Entities was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year period ending on the date hereof, none of the Seller Entities was a United States real property holding corporation within the meaning of Section 1504(a897(c)(2) of the Code filing Internal Revenue Code.
(g) Each Seller Benefit Plan, employment agreement, or other compensation arrangement of a combined federal income Tax return (or any similar provision Seller Entity that is a “nonqualified deferred compensation plan” within the meaning of non-U.S., state or local Law) nor does the Company or any Subsidiary Section 409A of the Company have Internal Revenue Code has a plan document that satisfies the requirements of Section 409A of the Internal Revenue Code and has been operated in compliance with the terms of such plan document and the requirements of Section 409A of the Internal Revenue Code, and the regulations thereunder, in each case such that no Tax is or has been due or payable under Section 409A of the Internal Revenue Code. No Seller Entity has any liability obligation to gross-up or otherwise reimburse any person for Taxes any Tax incurred by such person pursuant to Section 409A, Section 280G or Section 4999 of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) the Internal Revenue Code or otherwise. All Seller Stock Options and Seller Warrants were granted at no less than “fair market value” for purposes of Section 409A of the Internal Revenue Code, other than and each Seller Stock Option and Seller Warrant is exempt from Section 409A of the consolidated group of which the Company is currently the parent corporationInternal Revenue Code.
(h) Neither None of the Company nor Seller Entities will be required to include after the Closing any Subsidiary has engaged material adjustment in taxable income pursuant to Section 481 of the Internal Revenue Code or any comparable provision under state or foreign Tax Laws as a result of transactions or events occurring prior to the Closing. None of the Seller Entities have participated in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under within the meaning of Treasury Regulation Section 6011 1.6011-4 or any “tax shelter” within the meaning of the Internal Revenue Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Section 6662.
(i) The Company isAll Seller Entities have (i) to the extent deferred, properly complied in all material respects with all applicable Laws in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, (ii) to the extent applicable, eligible, and has at claimed, or intended to be claimed, properly complied in all times beenmaterial respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7004 of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, classified as (iii) not deferred any payroll Tax obligations (including those imposed by Sections 3101(a) and 3201 of the Internal Revenue Code) (for example, by a corporation for failure to timely withhold, deposit or remit such amounts in accordance with the applicable provisions of the Internal Revenue Code and the Treasury Regulations promulgated thereunder) pursuant to or in connection with any U.S. federal income tax purposespresidential memorandum or executive order, and (iv) not sought a PPP Loan.
Appears in 3 contracts
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to Buyer Entities have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and with the appropriate Taxing authorities all material Tax Returns in all jurisdictions in which such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company filed, and each Subsidiary for the periods covered thereby, except for such Tax Returns are correct and complete in all material respects. None of the failure Buyer Entities is the beneficiary of any extension of time within which to file would not have a Material Adverse Effectany Tax Return (other than any extensions to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes of the Buyer Entities (whether or not shown on any Tax Return) that are due have been fully and timely paid. There are no Liens for which any material amount of Taxes (other than a Lien for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings) on any of the Company or Assets of any Subsidiary of the Buyer Entities. No claim has been made in the last six years in writing by an authority in a jurisdiction where any Buyer Entity does not file a Tax Return that such Buyer Entity may be liable have been timely paid, except for subject to Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyby that jurisdiction.
(b) Except where such unpaid Tax would not have a Material Adverse EffectNone of the Buyer Entities has received any written notice of assessment or proposed assessment in connection with any material amount of Taxes, and there are no unpaid threatened in writing or pending disputes, claims, audits or examinations regarding any Taxes claimed to be due by the Taxing authority of any jurisdiction, and Buyer Entity or the officers Assets of any Buyer Entity. None of the Company and each Subsidiary know Buyer Entities has waived any statute of no basis for limitations in respect of any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary Each Buyer Entity has complied in all material respects with all Applicable applicable Laws relating to the payment and withholding of TaxesTaxes and the payment thereof to appropriate authorities, including sales and use Taxes, and has Taxes required to have been withheld and paid over all in connection with amounts paid or owing to any employee or independent contractor, and Taxes required by Applicable Laws to be withheld and paid from pursuant to Sections 1441 and 1442 of the wages Internal Revenue Code or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawssimilar provisions under foreign Law.
(fd) No claimDuring the two-year period ending on the date hereof, none of the Buyer Entities was a distributing corporation or notice of claim, has ever been made by an authority a controlled corporation in a jurisdiction where transaction intended to be governed by Section 355 of the Company or Internal Revenue Code. During the five-year period ending on the date hereof, none of the Buyer Entities was a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations United States real property holding corporation within the meaning of Section 1504(a897(c)(2) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationInternal Revenue Code.
(he) Neither None of the Company nor any Subsidiary has engaged Buyer Entities have participated in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under within the meaning of Treasury Regulation Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non1.6011-U.S., state or local Law)4.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Tax. (a) All Each Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that such Company is required to have been filed. All Tax Returns filed by or with respect to the each Company are true, correct and each Subsidiary have been timely filed (taking into account any extensions) and complete in all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectrespects. All Taxes owed (or to be remitted) by any Company (whether or not shown on any Tax Return) for which have been paid to the proper Governmental Body. No claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or any Subsidiary may be liable subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Companies that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.15 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which any Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been timely paidaudited, except for (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all rulings and similar determinations with respect to Taxes requested or received by any Company relating to any Company, (v) identifies those Tax Returns that are due to be filed within 90 days after the failure of which to pay would not have date hereof and (vi) contains a Material Adverse Effect. The Company complete and each Subsidiary have set aside on its books provision reasonably adequate for the payment accurate description of all material elections relating to Taxes for periods subsequent that were made by or on behalf of any Company. Hague has delivered or made available to the periods to which such Solterra true, correct and complete copies of all Tax Returns applyfiled by, and all examination reports, and statements of deficiencies assessed against or agreed to by, any Company during the six-year period ending on the date hereof.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionEach Company has withheld or collected, and paid to the officers of the Company proper Governmental Body, all Taxes required to have been withheld or collected and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputedremitted, and for complied with all periods information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to and including the dates of such financial statementsany employee, customer, creditor, stockholder, independent contractor, or other third party.
(c) Neither the Company nor There is no basis for any Subsidiary Governmental Body to assess any additional Taxes for any period for which Tax Returns have been filed. There is a party to no dispute or claim concerning any claimLiability for Taxes paid, dispute, audit, pending Action collected or proceeding, nor is any such claim, dispute, Action or proceeding threatened remitted by any Taxing authority, for the assessment Company either (i) claimed or collection of raised by any Taxes and no claim for the assessment Governmental Body in writing or collection of any Taxes (ii) as to which has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidKnowledge.
(d) No lien with respect to Taxes Company has been filed and no deficiency waived any statute or addition to Taxes, interest or penalties for any Taxes period of limitations with respect to any incomeTax or agreed, properties or operations been requested by any Governmental Body to agree, to any extension of the time with respect to any Tax. No extension of time within which to file any Tax Return of any Company or any Subsidiary has been proposedrequested, asserted granted or assessed against the Company or any Subsidiarycurrently is in effect.
(e) The No Company and each Subsidiary has complied filed a consent under Code § 341(f), as in all material respects with all Applicable Laws relating effect prior to the payment Jobs and withholding Growth Tax Reconciliation Act of Taxes2003, including sales and use Taxesconcerning collapsible corporations. No Company has made any payments, and has withheld and paid over all amounts required by Applicable Laws is obligated to be withheld and paid from the wages or salaries of employees, and neither the Company nor make any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claimpayments, or notice is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of claim, Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Company is a party to any Tax allocation, sharing, reimbursement or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the similar agreement. No Company nor any Subsidiary has been a member of an any “affiliated group of corporations within the meaning of Section group” as defined in Code § 1504(a) of the Code filing a combined federal income Tax return (or any similar group defined under a similar provision of non-U.S.state, state local or local foreign Law) nor does filing a consolidated federal, state, local or foreign income Tax Return (other than a group the common parent of which was Hague). No Company or has any Subsidiary of the Company have any liability Liability for Taxes of any Person (other Person than any Company) under Treasury Regulations Regulation § 1.1502-6 (or any similar provision of non-U.S.any other Law), state as a transferee or local Law) successor, by Contract, or otherwise. No Company has participated in an international boycott within the meaning of Code § 999. No Company has agreed, other or is required to make, any adjustments under Code § 481(a) by reason of a change in method of accounting or otherwise. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the date hereof. No Company has made, or is bound by, any election under Code § 197 or 1361.
(f) The unpaid Taxes of the Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the consolidated group face of which the Interim Balance Sheet (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Companies in filing their Tax Returns.
(g) No Company is currently has, directly or indirectly, participated in any transaction (including, the parent corporationtransactions contemplated by this Agreement) that would constitute (i) a “reportable transaction” or “listed transaction” as defined in Treasury Regulation § 1.6011-4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(h) Neither The execution and delivery of this Agreement and the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 performance of the Code and Treasury Regulations promulgated thereunder (Transactions will not cause Solterra or any similar provision of non-U.S., state or local Law)Company to have any Liability for any Tax.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Quantum Materials Corp.), Merger Agreement (Hague Corp.)
Tax. (a) All As soon as possible after the date of this Agreement, the Company will, at the reasonable instruction of the Buyer, seek advance Tax returnsclearances on (i) the amount of recognized paid-up share capital and share premium per share (fiscaal erkend kapitaal) for Dutch dividend withholding Tax purposes pursuant to article 13 of the Dutch Dividend Withholding Tax Act (Wet op de dividendbelasting 1965), (ii) other relevant Dutch dividend withholding Tax reportsaspects and (iii) other Tax aspects of the Transactions, information returnsin each case to the extent this is reasonably necessary to effectuate the Transactions in a Tax efficient manner or to facilitate compliance with relevant Tax laws including determining the amounts of Dutch dividend withholding Tax to be withheld in respect of the Second Step Distribution. Buyer shall prepare the drafts of the Tax clearances in relation to the Transactions, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect submit such drafts to the Company as soon as reasonably possible for its review and each Subsidiary have been provide the Company an opportunity to consult and comment on such draft Tax clearances and the Parties agree to include all comments reasonably and timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid proposed by or with respect to the Company and each Subsidiary for its counsel before the periods covered thereby, except for Tax Returns intended submission to the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effectrelevant Taxing Authority. The Company and each Subsidiary have set aside on its books provision Subsidiaries shall provide any information and documentation reasonably adequate requested by Buyer for purposes of preparing these drafts. The Company or the payment of all material Taxes for periods subsequent Buyer, as appropriate, will submit the Tax clearances to the periods relevant Taxing Authority as soon as reasonably possible following the final version having been determined in accordance with this Section 5.07, provided that no Tax clearance shall be submitted to, or agreed with, the relevant Taxing Authority by a Party without the prior written consent of the other Party (such consent not to which such be unreasonably withheld, conditioned or delayed). For purposes of this Section 5.07, any reference to “Tax Returns applyclearances” shall be deemed to include any material correspondence or other documents to be sent to the relevant Taxing Authority.
(b) Except where such unpaid Tax would not have a Material Adverse EffectDuring the Pre-Closing Period, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionCompany shall not, and shall cause each of its Subsidiaries not to, knowingly take any action outside the officers ordinary course of business of the Company and each Subsidiary know its Subsidiaries that may materially increase its absolute and/or relative direct or indirect investments in Dutch real estate by its direct Subsidiaries for purposes of no basis for any such claim. The provisions for Taxes payable, if any, shown on Article 4 of the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
Dutch Legal Transfer Tax Act (cWet Op belastingen van rechtsverkeer 1970) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against which increase in itself would result in the Company or any Subsidiary that has not been settled with of its direct Subsidiaries becoming a real estate investment company within the meaning of Article 4 of the Dutch Legal Transfer Tax Act (Wet Op belastingen van rechtsverkeer 1970). The Company shall, and shall cause each of its Subsidiaries to, provide Parent, Buyer and their respective Representatives all amounts due having been paid.
(d) No lien with respect information reasonably required to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of determine whether the Company or any Subsidiary has been proposedof its Subsidiaries qualifies as a real estate investment company, asserted or assessed against but only to the extent such information is reasonably available to the Company or any Subsidiaryof its Subsidiaries.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Purchase Agreement (InterXion Holding N.V.), Purchase Agreement (Digital Realty Trust, Inc.)
Tax. (a) All Pharmadrug has timely filed, or caused to be filed, all material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by it (all of which returns were correct and complete in all material respects), has timely paid, or caused to be paid, all Taxes due and payable by it, and has satisfied in full in all respects all Tax withholding, deposit and remittance requirements imposed on or with respect to Pharmadrug, and Pharmadrug's financial statements for the Company and fiscal period ended December 31, 2019 contain an adequate provision in accordance with Canadian generally accepted accounting principles for all material amounts of Taxes payable in respect of each Subsidiary have been timely filed (taking into account any extensions) and all period covered by such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect financial statements to the Company extent such Taxes have not been paid, whether or not due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown as being due on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on Pharmadrug has made adequate provision in accordance with International Financial Reporting Standards in its books provision reasonably adequate and records for the payment any amount of all Taxes material Taxes for periods to Pharmadrug and accruing in respect of any accounting period ending subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due period covered by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(cb) Neither Pharmadrug has not received any written notification that any issue involving an amount of Taxes has been raised (and is currently pending) by the Company nor Canada Revenue Agency, or any Subsidiary is a party other taxing authority, including any sales tax authority, and no waivers of statutes of limitations or objections to any claimassessments or reassessments involving an amount of Taxes have been given, disputefiled or requested with respect to Pharmadrug. Pharmadrug has not received any notice from any taxing authority to the effect that any Tax Return is being examined, audit, pending Action and Pharmadrug has no knowledge or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection notice of any contemplated Tax audit. There are no proposed (but unassessed) additional Taxes applicable to Pharmadrug and no claim for the assessment or collection of any Taxes none has been asserted against the Company Pharmadrug. There are no Tax liens on, or statutory trusts in respect of, any Subsidiary that assets of Pharmadrug except for Taxes not yet due and payable. Pharmadrug has not been settled with received a refund of any Taxes to which it was not entitled.
(c) Pharmadrug has withheld from each payment made to any present or former employees, officers, consultants and directors and to all persons who are non-residents of Canada for the purposes of the Tax Act all amounts due having been paidrequired by applicable Laws and have remitted such withheld amounts within the prescribed periods to the appropriate federal or provincial taxing authority. Pharmadrug has remitted all Canada Pension Plan contributions, Employment Insurance premiums and other Taxes payable by it and has or will have remitted such amounts to the proper taxing authority within the time required by applicable Laws. Pharmadrug charged, collected and remitted on a timely basis all Taxes required by applicable Laws (including, without limitation, Part IX of the Excise Tax Act (Canada) or the retail sales tax legislation of any province of Canada) on any sale, supply or delivery whatsoever, made by Pharmadrug.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties Pharmadrug is a "taxable Canadian corporation" for any Taxes with respect to any income, properties or operations the purposes of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any SubsidiaryTax Act.
(e) The Company If requested, Pharmadrug will furnish to Pharmadrug true and each Subsidiary has complied in complete copies of all material respects with all Applicable Laws relating of its federal and provincial income Tax Returns and Tax Returns filed by it pursuant to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
Excise Tax Act (f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local LawCanada).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Amalgamation Agreement, Amalgamation Agreement
Tax. Each of the Contributing Parties makes the following representations severally and not jointly and, for the avoidance of doubt, solely with respect to such Contributing Party’s Contributed Interests:
(a) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect Returns required by applicable Law to Taxes (collectively, “Tax Returns”) required to have been be filed by or with respect to the Company and each Subsidiary such Contributing Party’s Contributed Interests have been duly and timely filed (taking into account any extensions) filed, and all such Tax Returns are true, correct and complete in all material respects.
(b) All material Taxes due and accurate and disclose all Taxes required to be paid payable by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure such Contributing Party’s Contributed Interests (regardless of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementspaid in full.
(c) Neither the Company There is no action, suit, proceeding, investigation, audit or claim now pending against, or with respect to, such Contributing Party’s Contributed Interests in respect of any material Tax or material Tax assessment, nor has any Subsidiary claim for additional material Tax or material Tax assessment been asserted in writing by any Tax Authority.
(d) No written claim has been made by any Tax Authority in a jurisdiction where a Tax Return is a party not currently filed with respect to such Contributing Party’s Contributed Interests indicating that it is or may be subject to any claim, dispute, audit, pending Action or proceedingmaterial Tax in such jurisdiction, nor is has any such claimassertion been threatened. or proposed, dispute, Action in writing.
(e) Such Contributing Party has no outstanding request for any extension of time within which to pay any material Taxes or proceeding threatened by file any Taxing authority, Tax Returns with respect to such Contributing Party’s Contributed Interests.
(f) There has been no waiver or extension of any applicable statute of limitations for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any material Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionContributing Party’s Contributed Interests.
(g) Neither the Company nor any Subsidiary has been Such Contributing Party is not a member of an affiliated group of corporations “foreign person” within the meaning of Section 1504(a) 1445 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)There are no Tax Liens on such Contributing Party’s Contributed Interests except for Permitted Liens.
(i) The Company isNone of the Contributing Parties’ Contributed Interests are treated as an interest in a “partnership” as defined in Section 761 of the Code.
(j) For each Contributing Party that is a partnership, limited liability company, grantor trust or Subchapter S corporation under the Code, (a) for the period that the Contributing Party owns RH Units, at no time during such period will “substantially all” (within the meaning of Treasury Regulation Section 1.7704-1(h)(3)) of the value of any beneficial owner’s interest in such Contributing Party be attributable to the Contributing Party’s ownership (direct or indirect) of RH Units; and (b) the Contributing Party does not have, in acquiring the RH Units, a principal purpose of permitting Remora Holdings to satisfy the 100 partner limitation in Treasury Regulation Section 1.7704-1(h)(1), and, to the best of the Contributing Party’s knowledge, no owner of a beneficial interest in the Contributing Party has at all times been, classified as such a corporation for U.S. federal income tax purposesprincipal purpose.
Appears in 2 contracts
Sources: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.), Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Tax. (a) (i) All federal and state Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that were or are required to be filed on or before the Closing Date by the Parent or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been will be timely filed (taking into account any extensions) on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and accurate and disclose were or will be prepared in substantial compliance with all Applicable Laws; (ii) all Taxes required to be paid due and owing by the Parent or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Parent to the Company and adequately reserved for in the Parent Financial Statements. Neither the Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Parent or any of its Subsidiaries. Neither the Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where such unpaid the Parent or its Subsidiaries have not filed Tax would not have a Material Adverse EffectReturns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, there are no unpaid Taxes claimed to be due asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 4.13(b) of the Parent Disclosure Letter lists all Tax Returns filed by the Taxing authority Parent and its Subsidiaries for taxable periods ended on or after December 31, 2012, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of any jurisdiction, audit. The Company has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by the officers of the Company Parent and each Subsidiary know of no basis its Subsidiaries for taxable periods ended on or after December 31, 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Parent or any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed of its Subsidiaries with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods respect to and including the dates of such financial statementsthose taxable periods.
(c) Neither There are no Liens on the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company Parent’s or any Subsidiary of its Subsidiaries’ assets that has arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been settled established in accordance with all amounts due having been paidGAAP in the Parent Financial Statements.
(d) No lien Neither the Parent nor any of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any extension of time with respect to Taxes has been filed and no deficiency an income Tax assessment or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiarydeficiency.
(e) The Company Parent and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has its Subsidiaries have withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from the wages in connection with any amounts paid or salaries of employeesowing to any employee, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsindependent contractor, creditor, shareholder or other Third Party.
(f) No claimExcept as listed on Section 4.13(f) of the Parent Disclosure Letter, neither the Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither the Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Parent); or (B) has any liability for Taxes of any Person (other than the Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or notice non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.13(f) of claimthe Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Section 4.13(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Parent or any Subsidiary is a party and that could be treated as a partnership for federal income Tax purposes.
(h) Neither the Parent nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim has been made in the last five (5) years by an authority a Taxing Authority in a jurisdiction where the Company Parent or a any Subsidiary does not file Tax Returns that the Company (or such Subsidiary Subsidiary) is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual or legal basis for any such claim.
(gj) Neither the Company Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Parent nor any Subsidiary is or has been a member United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an affiliated group of corporations international boycott within the meaning of Section 1504(a) 999 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(hm) Neither the Company Parent nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation that, as of the date hereof, is a “reportable listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code and Treasury Regulations promulgated thereunder with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Parent or any Subsidiary, and, except as listed on Section 4.13(n) of the Parent Disclosure Letter, neither the Parent nor any of its Subsidiaries has obtained a private letter ruling or closing agreements from the Internal Revenue Service (or any similar provision of non-U.S., state or local Lawcomparable ruling from any other Taxing Authority).
(o) Neither the Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; (C) a “passive foreign investment company” nor has the Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) The Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement and will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 4.13(q) of the Parent Disclosure Letter, there is no agreement, contract or arrangement to which Parent or any of its Subsidiaries is a party that could, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 280G (as determined without regard to Section 280G(b)(4) or any corresponding provision of state, local or non-U.S. Tax law), 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Parent nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 481 of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date; (iv) as a result of an election under Section 108(i) of the Code; or (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(s) The Company isParent and its Subsidiaries have complied in all material respects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the Parent and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the extent required by Law, remit such unclaimed property to the applicable Governmental Entity. The Parent’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the foregoing representations.
(t) All transactions for taxable years for which the statute of limitations is still open (including but not limited to sales of goods, loans, and provision of services) between (i) the Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Parent and each Subsidiary in filing its Tax Returns. Since the filing of the Parent Financial Statements, neither the Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Parent operates at least one significant historic business line, or owns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d).
(w) The Parent has provided or otherwise made available to the Company all times beenof the Parent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Parent or its Subsidiaries that have been received since December 31, classified as a corporation for U.S. federal income tax purposes2011.
Appears in 2 contracts
Sources: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Tax. Except as would not reasonably be expected to result in a Company Material Adverse Effect:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Tax Authority by or with respect to on behalf of the Company and each Subsidiary or any of its Subsidiaries have been timely filed (taking into account any extensionsextension of time within which to file) and in accordance with all applicable Laws, (ii) all such Tax Returns are accurate, correct and complete in all respects and accurate have been prepared in compliance with all applicable Laws, and disclose (iii) all Taxes required to be paid due and payable by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may of its Subsidiaries (including any Taxes that are required to be liable deducted and withheld) have been duly and timely paid, except or duly and timely withheld and remitted to the appropriate Tax Authority; except, in each case of clauses (i) through (iii), for Taxes or Tax matters contested in good faith and for which adequate reserves have been established in accordance with GAAP in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent SEC Documents filed prior to the periods to which such Tax Returns apply.date hereof;
(b) Except where such unpaid Tax would not have a Material Adverse Effectsince May 1, there are 2016, no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no written claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Tax Authority in a jurisdiction where the Company or a Subsidiary any of its Subsidiaries does not file a particular type of Tax Returns Return or has not paid a particular type of Tax that the Company or such Subsidiary is any of its Subsidiaries is, or may be be, subject to taxation such Tax by or required to file or be included in such a Tax Return in that jurisdiction., other than any such claims that have been fully resolved or for which adequate reserves have been established in accordance with GAAP in the Company SEC Documents filed prior to the date hereof;
(gc) Neither there are no Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(d) (i) no written notice of any claim, deficiency, adjustment or underpayment has been received by the Company or any of its Subsidiaries with respect to any Tax, and no such claim, deficiency, adjustment or underpayment has been threatened in writing, and (ii) no Action in respect of Taxes is in progress, or has been threatened or proposed in writing, against or with respect to the Company or any of its Subsidiaries, which Action has not been fully and finally settled;
(e) neither the Company nor any Subsidiary of its Subsidiaries (i) has been a member any Liability for Taxes of an affiliated group of corporations within the meaning of Section 1504(a) any other Person (other than those of the Code filing a combined federal income Tax return Company or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) nor does is a party to any Tax sharing, allocation or indemnification agreement (other than (x) any agreement solely among the Company or any Subsidiary of its Subsidiaries and (y) commercial agreements the primary subject matter of which does not relate to Taxes) and (iii) has been a member of any affiliated, consolidated, combined, unitary or other similar group for purposes of filing Tax Returns (other than such a group of which the Company or any of its Subsidiaries is the parent);
(f) no waiver (or agreement or arrangement intended to effect a waiver) extending any statute of limitations in respect of Taxes or any extension of time with respect to any assessment, deficiency or collection with respect to Taxes is in effect for the Company or any of its Subsidiaries (other than as a result of any extension of time to file Tax Returns obtained in the ordinary course);
(g) neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations;
(h) neither the Company have nor any liability of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code during the past two years;
(i) neither the Company nor any of its Subsidiaries has received or applied for Taxes a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of state or local law);
(j) neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, as a result of any other Person under Treasury Regulations § 1.1502-6 (i) installment sale or open transaction disposition made on or prior to the Closing Date, (ii) any election pursuant to Section 108(i) of the Code (or any similar provision of non-U.S.state, state local or local Lawforeign law) made with respect to any tax period prior to the Closing Date or otherwise, other than (iii) any election pursuant to Section 965(h) of the consolidated group of which the Company is currently the parent corporation.Code; and
(hk) Neither neither the Company nor any Subsidiary of its Subsidiaries has engaged in any transaction that could give rise material amounts due and owing to a disclosure obligation as a “reportable transaction” any Governmental Authority under Section 6011 of the Code and Treasury Regulations promulgated thereunder (any applicable Law governing escheat or any similar provision of non-U.S., state or local Law)unclaimed property.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Barnes & Noble Inc), Merger Agreement (Barnes & Noble Inc)
Tax. (a) All Except to the extent reserved for in the most recent Parent Financial Statements, Parent and each of its Subsidiaries have timely filed, or have caused to be timely filed, all material Tax returnsReturns required to be filed, all such Tax reportsReturns are true, information returnscomplete and accurate in all material respects, declarations and all material amounts of estimated Taxes shown to be due on such Tax Returns, or otherwise owed, have been or will be timely paid. Parent and other declarations and statements each of its Subsidiaries, with respect to Taxes (collectively, “all income and other material Tax Returns”) required to have been Returns filed by or with respect to the Company and each Subsidiary any of them, have been timely filed (taking into account not waived any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure statute of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien limitations with respect to Taxes has been filed and no deficiency or addition agreed to Taxes, interest or penalties for any Taxes extension of time with respect to a Tax assessment or deficiency other than an extension attributable to an extension to file any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company such Tax Returns. Parent and each Subsidiary has of its Subsidiaries have withheld and paid to the appropriate taxing authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor, stockholder or other Third Party and have complied in all material respects with all Applicable Laws applicable Laws, rules and regulations relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(fb) No claimExcept as would not have and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) no Tax Authority has asserted, or notice threatened in writing to assert, a Tax liability (exclusive of claiminterest) in connection with an audit or other administrative or court proceeding involving Taxes of Parent or any of its Subsidiaries, (ii) neither Parent nor any of its Subsidiaries has ever been made by an authority distributed stock of another corporation or has had its stock distributed in a jurisdiction where the Company transaction that was purported or a Subsidiary does not file Tax Returns that the Company intended to be governed, in whole or such Subsidiary is in part, by Section 355 or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) 361 of the Code filing within the preceding five years, (iii) neither Parent nor any of its Subsidiaries has participated, or is currently participating, in a combined federal income Tax return “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b), (iv) neither Parent nor any of its Subsidiaries is a party to any agreement or arrangement relating to the apportionment, sharing, assignment or allocation of Taxes (other than an agreement or arrangement solely among the members of a group the common parent of which is Parent or any similar provision of non-U.S.its Subsidiaries), state or local Law) nor does the Company or any Subsidiary of the Company have has any liability for Taxes of any Person (other Person than Parent or any of its Subsidiaries) under Treasury Regulations § Section 1.1502-6 (or any similar provision of non-U.S.state, state local or local foreign Law) , as a transferee or successor, by contract or otherwise, other than and (v) except as set forth in Section 4.14(b) of the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company Parent Disclosure Letter, neither Parent nor any Subsidiary of its Subsidiaries has engaged in any transaction that could give rise net operating losses or other Tax attributes presently subject to a disclosure obligation as a “reportable transaction” limitation under Section 6011 Sections 382, 383 or 384 of the Code and Treasury Regulations promulgated thereunder or the federal consolidated return regulations (or any corresponding or similar provision of non-U.S.the state, state local or local foreign income Tax Law).
(i) The Company is, and has at all times been, classified other than limitations as a corporation for U.S. federal income tax purposesresult of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Tax. Except as set forth in the Balance Sheet (including the notes thereto) or on Schedule 3.18:
(a) All all Tax returns, Tax reportsstatements, information returnsreports and forms (collectively, declarations of estimated Tax the “Returns”) that are material and other declarations and statements required to be filed with any Taxing Authority at or before the Effective Time with respect to any Pre-Closing Tax Period by, or with respect to, the Company or any Company Subsidiary have been, or will be, timely filed at or before the Effective Time;
(b) the Company and the Company Subsidiaries have timely paid all Taxes shown as due and payable on the Tax Returns that have been filed;
(collectively, “Tax Returns”c) required to the Returns that have been filed by are, and all Returns that are required to be filed at or before the Effective Time shall be, true, correct and complete in all material respects;
(d) neither the Company nor any Company Subsidiary currently is the beneficiary of any extension of time within which to file any Tax Return, and there are no outstanding written requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any Taxes against the Company or any Company Subsidiary;
(e) the charges, accruals and reserves for Taxes with respect to the Company and the Company Subsidiaries reflected on the books of the Company and the Company Subsidiaries are adequate to cover material Tax liabilities accruing through the end of the last period for which the Company and the Company Subsidiaries ordinarily record items on their respective books;
(f) neither the Company nor any Company Subsidiary has incurred a Tax liability from the Balance Sheet Date other than a Tax liability in the ordinary course of business;
(g) there is no action, suit, proceeding, investigation, audit or claim now in progress or pending or, to the Knowledge of the Company, threatened against or with respect to the Company or any Company Subsidiary in respect of any material Tax;
(h) each of the Company and each Subsidiary the Company Subsidiaries have been timely filed (taking into account any extensions) withheld and all such Tax Returns are complete and accurate and disclose paid all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all in connection with any amounts required by Applicable Laws paid or owing to be withheld and paid from the wages any employee, independent contractor, creditor, stockholder, or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.other third party;
(fi) No claim, or notice of claim, no claim in writing has ever been made by an authority a Tax Authority in a jurisdiction where the Company or a any Company Subsidiary does not file Tax Returns that the Company or such any Company Subsidiary is or may be subject to taxation by that jurisdiction.;
(gj) Neither neither the Company nor any Company Subsidiary is a party to any agreement providing for the allocation or sharing of Taxes, and neither the Company nor any Company Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any person (other Person than the Company or Company Subsidiary) under Treasury Regulations § Treas. Reg. §1.1502-6 (or any similar provision of non-U.S.state, state local or local foreign Law) ), as a transferee or successor, by contract, or otherwise, other than the consolidated group of which the Company is currently the parent corporation.;
(hk) Neither neither the Company nor any Company Subsidiary has engaged been a party to any distribution occurring during the last two years in which the parties to such distribution treated the distribution as one to which Section 355 or Section 361 of the Code is applicable;
(l) neither the Company nor any transaction Company Subsidiary has entered into any transactions that could give rise to a disclosure obligation as a are or would be part of any “reportable transaction” under Section 6011 Sections 6011, 6111 or 6112 of the Code and Treasury Regulations promulgated thereunder (or any similar provision under any state or local law); and
(m) neither the Company nor any Company Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period ending after the Effective Time as a result of any (i)(A) change in method of accounting either imposed by the Internal Revenue Service or voluntarily made by the Company or any Company Subsidiary on or prior to the date hereof, or (B) “closing agreement” as described in Section 7121 of the Code (or any similar provision of non-U.S.state, state local, or local Lawforeign income Tax law), executed or agreed to on or prior to the date hereof, (ii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local, or foreign income Tax law) or (iii) installment sale or open transaction disposition made on or prior to the Effective Time.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Merger Agreement (Mueller Water Products, Inc.), Merger Agreement (Walter Industries Inc /New/)
Tax. Except as otherwise set forth in Section 6.23 of the Noble Disclosure Document:
(i) Each of the material Tax Returns required to be filed by or on behalf of Noble or its Affiliates with any governmental body with respect to any taxable period ending on or before the Closing Date (the “Noble Group Returns”): (a) has been or will be filed on or before the applicable due date (including any extensions of such due date); and (b) has been, or will be when filed, prepared in all material respects in compliance with all applicable legal requirements. All Tax returns, Tax reports, information returns, declarations of estimated Tax amounts shown on the Noble Group Returns to be due on or before the Closing Date have been or will be paid on or before the Closing Date.
(ii) The most recent audited balance sheet for Noble included in the Noble SEC Documents fully accrues all actual and other declarations and statements contingent liabilities for Taxes with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or all periods through the date of this Agreement in accordance with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered therebyUS Accounting Principles, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except liabilities for Taxes incurred since the failure date of which such balance sheet in the operation of the business of Noble and its Affiliates. Noble will establish, prior to pay would not have a Material Adverse Effect. The Company the Closing Date, in the ordinary course of business and each Subsidiary have set aside on consistent with its books provision reasonably past practice, reserves adequate for the payment of all material Taxes for periods subsequent to the periods to which period from the date of such Tax Returns applybalance sheet through the Closing Date.
(biii) Except where such unpaid Tax would not have a Material Adverse EffectNeither Noble nor any of its Affiliates nor any Noble Group Return is currently subject to (or since December 31, there are no unpaid Taxes claimed 2003 has been subject to) an audit by any governmental body. No extension or waiver of the limitation period applicable to be due any of the Noble Group Returns has been granted (by the Taxing authority of Noble or any jurisdictionother Person), and the officers no such extension or waiver has been requested from Noble or any of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsits Affiliates.
(civ) Neither the Company nor any Subsidiary No claim or legal proceeding is a party pending or, to any claimNoble’s Knowledge, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted threatened in writing against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and Noble or any of its Affiliates in respect of any material Tax. There are no deficiency or addition to Taxes, interest or penalties unsatisfied liabilities for any material Taxes with respect to any income, properties notice of deficiency or operations similar document received by Noble or any of its Affiliates with respect to any material Tax (other than liabilities for Taxes asserted under any such notice of deficiency or similar document that are being contested in good faith by Noble and its Affiliates and with respect to which adequate reserves for payment have been established on the balance sheet identified in subsection (ii) above. There are no liens for material Taxes upon any of the Company assets of any of Noble or any Subsidiary has been proposed, asserted or assessed against the Company of its Affiliates except liens for Taxes not yet due and payable. None of Noble or any Subsidiaryof its Affiliates has been, and none of them will be, required to include any material adjustment in taxable income for any tax period (or portion thereof) ending after the Closing Date pursuant to Section 481 or 263A of the Code (or any comparable provision of state or foreign Tax laws) as a result of transactions or events occurring, or accounting methods employed, prior to the Closing.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(fv) No claim, or written notice of claim, has ever been made delivered by an authority any governmental body to Noble or any of its Affiliates in a jurisdiction where the Company or a Subsidiary it does not file a Tax Returns Return that the Company or such Subsidiary it is or may be subject to taxation by that jurisdictionjurisdiction which has resulted or could reasonably be expected to result in an obligation to pay material Taxes.
(gvi) There are no contracts, arrangements or understandings (whether or not legally binding) relating to allocating or sharing of Taxes to which Noble or any of its Affiliates is a party. Neither Noble nor any of its Affiliates is liable for Taxes of any other Person, or is currently under any contractual obligation to indemnify any Person with respect to any amounts of such Person’s Taxes (except for customary agreements to indemnify lenders or security holders in respect of Taxes) or is a party to any contract, arrangement or understanding providing for payments by Noble or any of its Affiliates with respect to any amount of Taxes of any other Person.
(vii) Neither the Company Noble nor any Subsidiary of its Affiliates has constituted either a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code within the previous two years. Neither Noble nor any of its Affiliates is or has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(viii) Neither Noble nor any of its Affiliates has been a member of an affiliated group of corporations within the meaning of Section 1504(a) 1504 of the Code filing a combined federal income Tax return (or within the meaning of any similar legal requirement to which Noble or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwiseits Affiliates may be subject, other than the consolidated affiliated group of which Noble is the Company is currently the parent corporationcommon parent.
(hix) Neither the Company nor any Subsidiary Noble has engaged in any transaction delivered to Arcelor (including by posting of such documents to an electronic data room to which Arcelor representatives have been granted access) accurate and complete copies of all income Tax Returns of Noble and its Affiliates for all Tax years that could remain open or are otherwise subject to audit, as well as all other material Tax Returns of Noble and its Affiliates filed since December 31, 2003.
(x) Noble has disclosed on its federal income Tax Returns all positions that would be likely to give rise to a disclosure obligation as a “reportable transaction” under material understatement penalty within the meaning of Section 6011 6662 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)legal requirements imposed by foreign taxing jurisdictions.
(ixi) The Company isNeither Noble nor any of its Affiliates has participated in, and has at all times beenor is currently participating in, classified as a corporation for U.S. federal income tax purposes“Listed Transaction” or a “Reportable Transaction” within the meaning of US Department of the Treasury Regulation Section 1.6011-4(b)(2) or similar transaction under any corresponding or similar legal requirement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Arcelor), Share Purchase Agreement (Noble International, Ltd.)
Tax. (a) All Tax returnsReturns required to be filed by or on behalf of the Seller have been duly filed on a timely basis and such Tax Returns were, when filed, true, complete and correct in all material respects. All Taxes shown to be payable on such Tax reportsReturns or on subsequent assessments with respect thereto have been paid in full on a timely basis, information returns, declarations of estimated Tax and no other declarations Taxes are due and statements payable by the Seller with respect to Taxes (collectively, “Tax Returns”) required to have been filed items or periods covered by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any such Tax Return) for which the Company or any Subsidiary may be liable Returns). The Seller has withheld and paid over all Taxes required to have been timely paidwithheld and paid over, except for Taxes and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens (other than Permitted Liens) on any of the failure of which Purchased Assets with respect to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyTaxes.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no The amount of the Seller’s liabilities for unpaid Taxes claimed to be due by for all periods through December 31, 2013 does not, in the Taxing authority aggregate, exceed the amount of any jurisdictionthe liability accruals for Taxes reflected on the Financial Statements, and the officers Most Recent Balance Sheet properly accrue in accordance with GAAP all liabilities for Taxes of the Company Seller payable after December 31, 2013 attributable to transactions and each Subsidiary know of no basis for any events occurring prior to such claimdate. The provisions No liability for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether of Seller has been incurred or not disputed, and for all periods material amount of taxable income has been realized (or prior to and including the dates Closing Date will be incurred or realized) after December 31, 2013 other than in the ordinary course of such financial statementsbusiness.
(c) Neither No audit of the Company nor any Subsidiary Tax Returns of or including the Seller by a Governmental or Regulatory Authority is in process, or, to Seller’s Knowledge, threatened or pending. No deficiencies exist or have been asserted with respect to Taxes of the Seller. Seller has not received notice that it has not filed a Tax Return or paid Taxes required to be filed or paid. Seller is not a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action action or proceeding threatened by any Taxing authority, for the assessment or collection of Taxes, nor, to Seller’s Knowledge, has such event been asserted or threatened against Seller or any Taxes and of the Purchased Assets. There are no claim agreements or waivers currently in effect that provide for an extension of time for the assessment or collection of any Taxes has been asserted Tax against the Company or any Subsidiary that has not been settled with all amounts due having been paidSeller.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, written claim has ever been made delivered to the Seller by an authority a Governmental Entity in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns that the Company or such Subsidiary Seller is or may be subject to taxation by that jurisdiction.
(ge) Neither Seller is not, and has never been, a party to any tax sharing agreement. Since inception, the Company nor any Subsidiary Seller has not been a member of an affiliated group of corporations within the meaning of distributing corporation or a controlled corporation in a transaction described in Section 1504(a355(a) of the Code filing a combined federal income Code.
(f) The Seller has collected and remitted all applicable sales or use Taxes to the appropriate Governmental Entity.
(g) The Seller has disclosed to the IRS on the appropriate Tax return Returns any “Reportable Transaction” (or as defined in Treasury Regulation section 1.6011-4(b)) in which the Seller has participated. The Seller has retained all documents and other records pertaining to any similar provision of nonReportable Transaction in which the Seller has participated, including documents and other records listed in Treasury Regulation section 1.6011-U.S., state or local Law4(g) nor does the Company or any Subsidiary of the Company have any liability for Taxes of and any other Person under Treasury Regulations § 1.1502-6 (documents or other records which are related to any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of Reportable Transaction in which the Company is currently the parent corporationSeller has participated but not listed in Treasury Regulation section 1.6011-4(g).
(h) Neither No bulk sale/transfer statute or law, including, without limitation, the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a California “reportable transactionBulk Sales” publication requirements under Section 6011 Division 6 of the Code California Commercial Code, applies to the transaction contemplated hereby and Treasury Regulations promulgated thereunder (the Buyer will suffer no loss, cost or any similar provision expense because of the non-U.S., state compliance of the parties hereto with any bulk sale/transfer statute or local Law)law.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Icad Inc), Asset Purchase Agreement (Icad Inc)
Tax. (ai) All The Company and its Subsidiaries each (A) has filed all United States federal, state and local and all material foreign Tax returns, Tax reportsreports and declarations required by any jurisdiction to which it is subject (or obtained valid extensions thereof), information returns, declarations (B) has paid all of estimated Tax Taxes and other declarations governmental assessments and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company charges that are due and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes payable (whether or not shown or determined to be due on any Tax Returnsuch returns, reports and declarations) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have (C) has set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns returns, reports or declarations apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there . There are no unpaid Taxes claimed to be due by the Taxing taxing authority of any jurisdiction. All such Tax returns, reports and the officers declarations were correct and complete in all material respects. None of the Company and each Subsidiary know its Subsidiaries has waived any statute of no basis for limitations in respect of Taxes or agreed to any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed extension of time with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether respect to a Tax assessment or not disputed, and for all periods to and including the dates of such financial statementsdeficiency.
(cii) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations Each of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and its Subsidiaries has withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from the wages in connection with amounts paid or salaries of employeesowing to any employee, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsindependent contractor, creditor, stockholder, or other third party.
(fiii) No claimdirector or officer (or employee responsible for Tax matters) of the Company and its Subsidiaries, expects any authority to assess any additional Taxes for any period for which Tax returns have been filed. There is no dispute or notice claim concerning any Tax liability of claim, has ever been made any of the Company and its Subsidiaries either (A) claimed or raised by an any authority in a jurisdiction where writing or (B) as to which any of the directors and officers (and employees responsible for Tax matters) of the Company or a Subsidiary does not file Tax Returns that the Company or and its Subsidiaries has knowledge based upon personal contact with any agent of such Subsidiary is or may be subject to taxation by that jurisdictionauthority.
(giv) Neither None of the Company nor any Subsidiary and its Subsidiaries (A) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined consolidated federal income Tax return (other than an affiliated group the common parent of which was the Company) or (B) has any similar provision liability for the Taxes of non-U.S., state or local Law) nor does the Company or any Subsidiary person (other than any of the Company have any liability for Taxes of any other Person and its Subsidiaries) under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local, or local Law) foreign law), or as a transferee or successor, or by contract, or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Share Purchase Agreement (HK Xu Ding Co., LTD), Share Purchase Agreement (Deng Long)
Tax. (a) (i) All federal and state Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that were or are required to be filed on or before the Closing Date by the Company or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been will be timely filed (taking into account any extensions) on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and accurate and disclose were or will be prepared in substantial compliance with all Applicable Laws; (ii) all Taxes required to be paid due and owing by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Company to Parent and adequately reserved for in the Company Financial Statements. Neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Company or any of its Subsidiaries. Neither the Company nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where such unpaid the Company or its Subsidiaries have not filed Tax would not have a Material Adverse EffectReturns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, there are no unpaid Taxes claimed to be due asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 3.14(b) of the Company Disclosure Letter lists all Tax Returns filed by the Taxing authority Company and its Subsidiaries for taxable periods ended on or after December 31, 2012, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of any jurisdiction, audit. Parent has received (or had made available to it) correct and the officers complete copies of all federal and state income Tax Returns filed by the Company and each Subsidiary know of no basis its Subsidiaries for taxable periods ended on or after December 31, 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Company or any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed of its Subsidiaries with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods respect to and including the dates of such financial statementsthose taxable periods.
(c) There are no Liens on the Company’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP in the Company Financial Statements.
(d) Neither the Company nor any Subsidiary is a party of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection extension of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien time with respect to Taxes has been filed and no deficiency an income Tax assessment or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiarydeficiency.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has its Subsidiaries have withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Third Party.
(f) Except as listed on Section 3.14(f) of the wages or salaries of employeesCompany Disclosure Letter, and neither the Company nor any Subsidiary of its Subsidiaries is liable (or has been) a party to any Tax allocation or sharing agreement. Neither the Company nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Company); or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 3.14(f) of the Company Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any Taxes for failure to comply with taxable year (whether the current year, a future year or a past year). As of the Closing Date, the Company and its Subsidiaries shall have no further liability or claim under such Applicable LawsTax allocation or sharing agreements.
(fg) Except as listed on Schedule 3.14(g) of the Company Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Company or any Subsidiary is a party and that could be treated as a partnership for federal income Tax purposes.
(h) Neither the Company nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim, or notice of claim, claim has ever been made in the last five (5) years by an authority a Taxing Authority in a jurisdiction where the Company or a any Subsidiary does not file Tax Returns that the Company (or such Subsidiary Subsidiary) is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual or legal basis for any such claim.
(gj) Neither the Company nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Company nor any Subsidiary is or has been a member United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Company nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an affiliated group of corporations international boycott within the meaning of Section 1504(a) 999 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(hm) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation that, as of the date hereof, is a “reportable listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Company and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code and Treasury Regulations promulgated thereunder with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Company or any Subsidiary, and, except as listed on Section 3.14(n) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has obtained a private letter ruling or closing agreements from the Internal Revenue Service (or any similar provision of non-U.S., state or local Lawcomparable ruling from any other Taxing Authority).
(io) Neither the Company nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; (C) a “passive foreign investment company” nor has the Company or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) The Company isand each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement and will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 3.14(q) of the Company Disclosure Letter, there is no agreement, contract or arrangement to which the Company or any Subsidiary is a party that could, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 280G (as determined without regard to Section 280G(b)(4) or any corresponding provision of state, local or non-U.S. Tax law), 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Company nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 481 of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date; (iv) as a result of an election under Section 108(i) of the Code; or (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(s) The Company and its Subsidiaries have complied in all material respects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the Company and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the extent required by Law, remit such unclaimed property to the applicable Governmental Entity. The Company’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the foregoing representations.
(t) All transactions for taxable years for which the statute of limitations is still open (including but not limited to sales of goods, loans, and provision of services) between (i) the Company or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Company and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Company Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company and each Subsidiary in filing its Tax Returns. Since the filing of the Company Financial Statements, neither the Company nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Company operates at least one significant historic business line, or owns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d).
(w) The Company has provided or otherwise made available to Parent all times beenof the Company’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Company or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Company or its Subsidiaries that have been received since December 31, classified as a corporation for U.S. federal income tax purposes2011.
Appears in 2 contracts
Sources: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Tax. (a) All Tax returnsExcept as has not had, Tax reportsand would not reasonably be expected to have, information returnsa Company Material Adverse Effect, declarations of estimated Tax and other declarations and statements with respect to Taxes individually or in the aggregate:
(collectively, “Tax Returns”i) required to have been filed by or with respect to the The Company and each Company Subsidiary have been has timely filed, or has caused to be timely filed (taking into account any extensions) on its behalf, all Tax Returns required to be filed by it, and all such Tax Returns are true, complete and accurate and disclose prepared in substantial compliance with all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectapplicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. .
(ii) The Company and each Company Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent has (A) timely withheld and paid to the periods appropriate Tax authority all amounts required to which such Tax Returns applyhave been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable Law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company or any Subsidiaryof the Company Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied in all material respects There is no audit, proceeding or investigation now pending against or with all Applicable Laws relating respect to the payment and withholding Company or any of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries Company Subsidiaries in respect of employeesany Tax, and neither the Company nor any Subsidiary is liable for of the Company Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice of claimissued by any Tax authority with respect to any of, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company Subsidiaries which agreement or such Subsidiary is or may ruling would be subject to taxation by that jurisdictioneffective after the Closing Date.
(gvi) Neither the Company nor any Company Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency (other than with respect to customary extensions to file Tax Returns).
(vii) There are no Liens for Taxes (other than Permitted Liens) on the assets of the Company or any of the Company Subsidiaries.
(viii) Neither the Company nor any Company Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could reasonably be expected to give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(ix) During the two (2) year period ending on the date of this Agreement, neither the Company nor any Company Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(x) Neither the Company nor any Company Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (or any similar provision other than a group the common parent of non-U.S., state or local Law) nor does which was the Company or any Subsidiary of the Company have Subsidiary) or (ii) has any liability for the Taxes of any Person (other Person than the Company or any Company Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwiseas a transferee or successor, by Contract (other than (A) one that is included in a commercial Contract entered into in the consolidated group ordinary course of business that is not primarily related to Taxes, or (B) one the only parties to which are the Company is currently the parent corporationor other Company Subsidiaries) or otherwise.
(hxi) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where the Company or any Company Subsidiary does not file a Tax Return that the Company or such Company Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xii) Neither the Company nor any Company Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a commercial Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are the Company or any similar provision of non-U.S., state or local Lawother Company Subsidiaries).
(ixiii) The Company is, and has at all times always been, classified treated as a corporation for U.S. federal income tax purposes. Section 3.17(a)(xiii) of the Company Disclosure Schedule sets forth all elections made by the Company or any Company Subsidiary pursuant to Treasury Regulations Section 301.7701-3, and, unless otherwise noted on Section 3.17(a)(xiii) of the Company Disclosure Schedule, each Company Subsidiary has had such classification at all times since its incorporation or formation, as applicable.
(xiv) Neither the Company nor any of the Company Subsidiaries has taken advantage of any relief or Tax deferral or Tax credit provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Company SEC Documents reflect an adequate reserve for all income and other material Taxes payable by the Company and the Company Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xvi) The Company and each Company Subsidiary is a Tax resident only in its jurisdiction of formation. The Company and each Company Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of the Company’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of the Company, no more than 25% of the total number of all issued and outstanding shares of the Company, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(xvii) The prices and terms for the provision of any property or services undertaken among the Company and the Company Subsidiaries are arm’s length for purposes of the relevant transfer pricing Laws, and all related documentation required by such Laws has been timely prepared or obtained and, if necessary, retained.
(xviii) None of the Company or any Company Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date (A) as a result of any (1) change in or use of an improper method of accounting for a taxable period ending on or prior to the Closing Date, (2) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law) executed on or prior to the Closing Date, (3) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), (4) installment sale or open transaction disposition made on or prior to the Closing Date, or (B) as a result of any (1) prepaid amount received or deferred revenue accrued on or prior to the Closing Date, (2) “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) or (3) “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of Law) of the Company or any Company Subsidiary attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date, in each case in respect of the foregoing subclauses (1), (2) and (3) of (B) as a result of actions taken by the Company or a Company Subsidiary prior to the Closing outside the ordinary course of the business.
(xix) None of the Company or any Company Subsidiary will be required to pay any Tax after the Closing Date as a result of an election made by the Company or such Company Subsidiary pursuant to Section 965(h) of the Code.
(xx) No non-U.S. Company Subsidiary has, or at any time has had, an investment in “United States property” within the meaning of Section 956(b) of the Code.
(xxi) No non-U.S. Company Subsidiary is, or at any time has been, a “passive foreign investment company” within the meaning of Section 1297 of the Code and none of the Company or any Company Subsidiary is a stockholder, directly or indirectly, in a passive foreign investment company.
(b) No Company Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Company Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code. Each non-U.S. Company Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) None of the outstanding Company Stock Options or Company Warrants to purchase or acquire Company Common Stock (i) were issued by the Company (or any current or former Company Affiliate) with an exercise price that was less than the fair value of the underlying Company Common Stock (or Subsidiary shares) for which the Company Stock Options or Company Warrants were exercisable at the time such Company Stock Options or warrants were issued, (ii) are, or have ever been, properly treated as stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such Company Warrants could be reasonably expected to be economically compelled to exercise such Company Warrants. Notwithstanding anything to the contrary in this Agreement, this Section 3.17 and Section 3.9 (to the extent it relates to Tax matters) contain the only representations and warranties by the Company with respect to Tax matters in this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Markforged Holding Corp), Merger Agreement (Nano Dimension Ltd.)
Tax. Except as set forth in Schedule 3.17:
(a) All Tax returns, Tax reports, information returns, declarations each of estimated Tax the Company and its Subsidiaries has timely filed or joined in the filing of (taking into account extensions) all income and other declarations and statements with respect to Taxes (collectively, “material Tax Returns”) Returns required to have been filed by or with respect to the Company and each Subsidiary its Subsidiaries and has timely paid in full (or had paid in full on its behalf) all Taxes shown as due with respect to such Tax Returns and all other income and other material Taxes otherwise required to be paid by the Company or any of its Subsidiaries, and with respect to any period for which Tax Returns have not yet been filed or for which Taxes of the Company or its Subsidiaries are not yet due or payable, adequate accruals for such Taxes on the Financial Statements as required by GAAP have been timely filed (taking into account any extensions) made, and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid filed by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company its Subsidiaries are correct and each Subsidiary have set aside on its books provision reasonably adequate for the payment of complete in all material Taxes for periods subsequent to the periods to which such Tax Returns apply.respects;
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Liens for Taxes claimed to be due by against any of the Taxing authority assets of the Company or any of its Subsidiaries, other than Permitted Liens;
(c) no agreement extending the period for assessment or collection of any jurisdictionincome and other material Taxes of the Company or any of its Subsidiaries has been executed or filed with any Tax authority, and the officers Tax Returns of the Company and each Subsidiary know of no basis its Subsidiaries have been examined by and settled with the IRS (or the applicable statute of limitations has expired) for all years through December 31, 2005, and all assessments for income and other material Taxes due with respect to such completed and settled examinations or any concluded litigation have been fully paid;
(d) since January 1, 2005 and to the Knowledge of Seller for any such claim. The provisions for Taxes payabletaxable period prior to January 1, if any2005, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no written claim for the assessment or collection of any Taxes has been asserted against received from any Tax authority in a jurisdiction where the Company or any Subsidiary of its Subsidiaries does not file Tax Returns asserting that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary of its Subsidiaries is or may be subject to taxation in any such jurisdiction;
(e) the Company and each of its Subsidiaries has withheld and paid all income and other material Taxes required to be withheld in connection with any amounts paid or owing to any employee, creditor, independent contractor or other third party, and the Company and its Subsidiaries are in compliance in all material respects with all applicable legal requirements in connection therewith;
(f) no deficiency with respect to income and other material Taxes has been proposed, asserted or assessed against the Company or any Subsidiary.of its Subsidiaries;
(eg) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for any Taxes for failure tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to comply the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or a “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with such Applicable Laws.the transactions contemplated by this Agreement;
(fh) No claim, no audit or notice other administrative or court proceedings are pending with any Governmental Agency with respect to Taxes of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that any of its Subsidiaries and no written notice thereof has been received by the Company or any of its Subsidiaries except where any such Subsidiary notice was previously withdrawn or the matters underlying such notice were resolved and, to the Knowledge of Seller, none is threatened, and no issue has been raised by any Governmental Agency in any currently pending Tax audit that could be material and adverse to the Company or may be subject to taxation by that jurisdiction.any of its Subsidiaries for any period after the Closing Date;
(gi) Neither Seller has made available to Purchaser correct and complete copies of (i) all income and franchise Tax Returns of, or relating to, the Company and its Subsidiaries for the preceding three (3) taxable years and (ii) any audit report issued within the last three (3) years (or otherwise with respect to any audit or proceeding in progress) relating to income and franchise Taxes of the Company or any of its Subsidiaries;
(j) neither the Company nor any Subsidiary of its Subsidiaries is or has been a “United States real property holding corporation” within the meaning of Section 897 of the Code during the five (5) year period ending on the Closing Date;
(k) neither the Company nor any of its Subsidiaries is a party to any agreement or arrangement relating to the apportionment, sharing, assignment or allocation of any Tax or Tax asset (other than a Contract among members of a group the common parent of which is Seller);
(l) neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated Affiliated Group other than such group of corporations within which Seller is the meaning common parent or (ii) has any liability for income and other material Taxes of any Person other than the Company or any of its Subsidiaries;
(m) neither the Company nor any of its Subsidiaries has executed or entered into any written agreement with, or obtained or applied for any written consents or written clearances or any other Tax rulings from, nor has there been any written agreement executed or entered into on behalf of any of them with any Governmental Agency, relating to income and other material Taxes, including any IRS private letter rulings or comparable rulings of any Governmental Agency and closing agreements pursuant to Section 1504(a) 7121 of the Code filing a combined federal income Tax return (or any predecessor provision thereof or any similar provision of nonany law;
(n) neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning 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) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax law), (iii) installment sale or open transaction disposition occurring on or prior to the Closing Date or (iv) prepaid amount received on or prior to the Closing Date, except for deferred revenue reflected on the Closing Date Balance Sheet;
(o) neither the Company nor any of its Subsidiaries has been a party to any “reportable transaction” within the meaning of Treasury Regulation 1.6011-U.S.4(b)(1), state nor will the transaction contemplated by this Agreement constitute such a reportable transaction;
(p) there is no contract covering any person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company or any of its Subsidiaries or Purchaser (or Affiliates of Purchaser) by reason of Section 280G of the Code or any analogous provision of state, local or foreign Law;
(q) nor does each of the Company’s Subsidiaries which is a foreign corporation for U.S. federal income Tax purposes has been a controlled foreign corporation (within the meaning Section 957 of the Code) at all times during the holding period (for United States federal income Tax purposes) of Jupiterimages (UK) Ltd., Jupiterimages GmbH and the Company, as applicable, and the Company has been a United States shareholder (within the meaning of section 951(b) of the Code) with respect to each of those Subsidiaries during the applicable holding periods referred to herein;
(r) the Company and each of its Subsidiaries has maintained, in all material respects, with respect to transfer pricing, proper intercompany agreements and/or concurrent and supporting documentation as required under all applicable Tax Laws, such that no transfer pricing amounts will be denied as deductions in any jurisdiction by reason of a lack of proper agreements or supporting documentation; and
(s) for purposes of this Section 3.17, any reference to the Company or any Subsidiary of the Company have shall be deemed to include any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (which merged or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationwas liquidated into such entity.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Meckler Alan M), Stock Purchase Agreement (Jupitermedia Corp)
Tax. (a) All CMI has timely filed, or caused to be filed, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by it (all of which returns were correct and complete in all material respects), has timely paid, or caused to be paid, all Taxes due and payable by either of them, and has satisfied in full in all respects all Tax withholding, deposit and remittance requirements imposed on or with respect to CMI, and CMI’s consolidated financial statements for the Company and fiscal period ending December 31, 2008 contain an adequate provision in accordance with Canadian generally accepted accounting principles for all material amounts of Taxes payable in respect of each Subsidiary have been timely filed (taking into account any extensions) and all period covered by such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect financial statements to the Company extent such Taxes have not been paid, whether or not due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown as being due on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse EffectReturns. The Company and each Subsidiary have set aside on CMI has made adequate provision in accordance with Canadian generally accepted accounting principles in its books provision reasonably adequate and records for the payment any amount of all Taxes material Taxes for periods to CMI and accruing in respect of any accounting period ending subsequent to the periods to which period covered by such Tax Returns applyfinancial statements.
(b) Except where such unpaid as disclosed in writing to Genterra:
(i) CMI has not received any written notification that any issue involving an amount of Taxes has been raised (and is currently pending) by the Canada Customs and Revenue Agency, the United States Internal Revenue Service or any other taxing authority, including any sales tax authority, and no waivers of statutes of limitations or objections to any assessments or reassessments involving an amount of Taxes have been given, filed or requested with respect to CMI;
(ii) CMI has not received any notice from any taxing authority to the effect that any Tax would not have a Material Adverse EffectReturn is being examined, there and CMI has no knowledge of any Tax audit or issue;
(iii) There are no unpaid proposed (but unassessed) additional Taxes claimed to be applicable by CMI and none has been asserted against CMI;
(iv) There are no Tax liens on, or statutory trusts in respect of, any assets of CMI except for Taxes not yet due by the Taxing authority and payable; and
(v) CMI has not received a refund of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or to which it was not disputed, and for all periods to and including the dates of such financial statementsentitled.
(c) Neither the Company nor any Subsidiary is a party CMI has withheld from each payment made to any claimpresent or former employees, disputeofficers, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, consultants and directors and to all persons who are non-residents of Canada for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations purposes of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over Tax Act all amounts required by Applicable Laws Law and have remitted such withheld amounts within the prescribed periods to be withheld the appropriate federal or provincial taxing authority. CMI has remitted all Canada Pension Plan contributions, Employment Insurance premiums, Employer Health Taxes and paid from other Taxes payable by it and has or will have remitted such amounts to the wages proper taxing authority within the time required by applicable Law. CMI charged, collected and remitted on a timely basis all Taxes required by applicable Law (including, without limitation, Part IX of the Excise Tax Act (Canada) or salaries the retail sales tax legislation of employeesany province of Canada) on any sale, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claimsupply or delivery whatsoever, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionCMI.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Amalgamation Agreement (Genterra Inc), Amalgamation Agreement (Genterra Inc)
Tax. (a) There are no outstanding audits or other administrative or judicial actions by any Governmental Authority with regard to, or related to, the Tax treatment of the Business or the Transferred Assets, nor to the Knowledge of Seller, as of the date hereof, is any such audit or other administrative or judicial action pending or threatened.
(b) Seller and its Affiliates have timely paid all material Taxes which will have been required to be paid on or prior to the date hereof in respect of the Business or the ownership of the Transferred Assets.
(c) All Tax returnsmaterial Taxes required to have been withheld, Tax reports, information returns, declarations of estimated Tax and other declarations and statements collected or remitted with respect to Taxes the Business or the Transferred Assets have been withheld, collected or remitted, as applicable, to the applicable Governmental Authority in accordance with Applicable Law.
(collectivelyd) Seller and its Affiliates have materially complied with all Tax reporting, “withholding, and disclosure requirements applicable to the Ceded Insurance Contracts under the Code, Treasury Regulations, and forms issued by the Internal Revenue Service and under any corresponding or similar provision of state or local law.
(e) Seller and its Affiliates have duly and timely (including any applicable extensions) filed all material Tax Returns”) Returns required to have been filed by them in respect of the Business or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) ownership of the Transferred Assets, and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied complete in all material respects with all Applicable Laws relating as they relate to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from Business or the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable LawsTransferred Assets.
(f) No claimAll material deficiencies asserted in writing or assessments made in writing with respect to the Business or the ownership of the Transferred Assets by a Tax authority have been paid in full, except to the extent they are being contested in good faith through appropriate proceedings.
(g) There are no material Liens for Taxes (other than Permitted Liens) upon the Transferred Assets.
(h) Seller and each of its Affiliates are not and have not been a party to any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4 with respect to the Business or notice of claim, has ever been made by an the Transferred Assets.
(i) There is no written claim pending from any Tax authority in a any jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns in respect of the Business that the Company or such Subsidiary Business is or may be subject to taxation by that jurisdiction.
(gj) Neither The reserves reflected with respect to the Company nor any Subsidiary has been a member of an Ceded Insurance Contracts on the consolidated federal income Tax Return filed by the affiliated group of corporations within which Seller is a member for the meaning of Section 1504(a) of year ending December 31, 2014, and since such date, have been determined in all material respects in the manner required by the Code filing a combined federal income Tax return (or any similar provision of non-U.S.and other Applicable Law, state or local Law) nor does and to the Company or any Subsidiary of extent relevant to the Company determination and maintenance thereof, have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationbeen determined and maintained in all material respects in accordance with SAP.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(ik) The Company isTax treatment of each Ceded Insurance Contract is not, and and, since the time of issuance, has at all times not been, classified as a corporation materially less favorable to the purchaser, policyholder or intended beneficiaries thereof, than the Tax treatment and purported to qualify for U.S. federal income tax purposesat the time of issuance.
Appears in 2 contracts
Sources: Master Transaction Agreement (CVS HEALTH Corp), Master Transaction Agreement (Aetna Inc /Pa/)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the The Company and each of its Subsidiaries (and any affiliated, consolidated, combined, unitary or aggregate group for Tax purposes of which the Company or any such Subsidiary have is or has been a member) (i) has properly completed and timely filed (taking into account any extensionsor had timely filed on its behalf) all material foreign, federal, state, local and municipal Tax Returns required to be filed by it and all such Tax Returns are true, correct and complete and accurate and disclose in all material respects, (ii) has timely paid (or will timely pay) all Taxes required to be paid by or with respect it prior to the Company Closing Date or, in the case of Taxes not yet due and each Subsidiary for the periods covered therebypayable, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which has established in the Company Financial Statements an adequate accrual or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate reserve in accordance with GAAP for the payment of all material such Taxes and (iii) has no Liability for periods subsequent to Taxes in excess of the periods to which such Tax Returns applyamount of accruals or reserves so established in the Company Financial Statements.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to of its Subsidiaries has received any claimwritten notification from any Tax Authority regarding any issues that (i) are currently pending before any Tax Authority regarding the Company, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened (ii) have been raised by any Taxing authority, for Tax Authority and not yet finally resolved.
(c) No Encumbrances relating to Taxes are currently in effect against any of the assessment or collection assets of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidof its Subsidiaries other than Permitted Encumbrances.
(d) No lien federal, state, local or foreign audit, examination or contest is presently pending with respect regard to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations Tax Returns of the Company or any Subsidiary and its Subsidiaries and no such audit has been proposedthreatened in writing.
(e) There are no outstanding requests, asserted agreements, consents or assessed waivers to extend the statutory period of limitations applicable to the assessment of any Taxes or deficiencies against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxesits Subsidiaries, and has withheld and paid over all amounts required no power of attorney granted by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor or any Subsidiary is liable for of its Subsidiaries with respect to any Taxes for failure to comply with such Applicable Lawsis currently in force.
(f) No claimNeither the Company nor any of its Subsidiaries has (i) been a member of an affiliated group (within the meaning of Section 1504 of the Code) or an affiliated, consolidated, combined, unitary, or notice aggregate group for state, local or foreign Tax purposes, other than the group of claimwhich the Company is the common parent or (ii) any Liability for or in respect of the Taxes of, has ever been made or determined by an authority in a jurisdiction where reference to the Tax Liability of, another Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of state, local or foreign Tax Law), as a Subsidiary does not file Tax Returns that the Company transferee or such Subsidiary is successor, by Contract or may be subject to taxation by that jurisdictionotherwise.
(g) Neither the Company nor any Subsidiary has been of its Subsidiaries is a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income party to or bound by any Tax return (sharing, Tax indemnity, or any similar provision of non-U.S., state or local Law) Tax allocation agreement nor does the Company or any Subsidiary of the Company its Subsidiaries have any liability for Taxes of Liability or potential Liability to another party under any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationsuch agreement.
(h) Since 2004, no claim that has not been resolved has been made against the Company or any of its Subsidiaries by a Tax Authority in a jurisdiction where the Company or its Subsidiaries do not file Tax Returns that any one of them is or may be subject to Tax by that jurisdiction.
(i) The Company and its Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(j) Neither the Company nor any Subsidiary of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying under Section 355 of the Code (i) in the two (2) years prior to the date hereof or (ii) in a distribution that 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 Merger.
(k) The Company is not a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code and has not been (and will not be) such a United States real property holding corporation during the five (5) year period ending on the Closing Date.
(l) Neither the Company nor any of its Subsidiaries has agreed or is required to include in income any adjustment under either Section 481(a) or Section 482 of the Code (or an analogous provision of state, local or foreign Tax Law) by reason of a change in accounting method or otherwise.
(m) Neither the Company nor any of its Subsidiaries has engaged in any transaction that gives rise to (or could give rise to to) a disclosure obligation as a “reportable transaction” under within the meaning of Section 6011 1.6011-4(b) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S.state, state local or local foreign Tax Law).
(in) Neither the Company nor any of its Subsidiaries has participated in, or is currently participating in, a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Regulations or similar provision of state, local or foreign Tax Law.
(o) The Company ishas made available to Parent or its legal or accounting representative copies of all Tax Returns for the Company and each of its Subsidiaries filed for all periods including and after the period ended December 31, 2004.
(p) None of the Company or any of its Subsidiaries has taken any action or knows of any fact, agreement, plan or other circumstance that would reasonably be expected to prevent or preclude the Merger and has at all times beenthe Upstream Merger, classified considered together as a corporation single integrated transaction for U.S. United States federal income tax purposesTax purposes along with the other transactions effected pursuant to this Agreement, from qualifying as a “reorganization” described in Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Marvel Entertainment, Inc.)
Tax. (a) (i) All federal and state Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that were or are required to be filed on or before the Closing Date by the Company or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been will be timely filed (taking into account any extensions) on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and accurate and disclose were or will be prepared in substantial compliance with all Applicable Laws; (ii) all Taxes required to be paid due and owing by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes or its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to the Company's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by the Company to Parent and adequately reserved for in the Company Financial Statements. Neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Company or any of its Subsidiaries. Neither the Company nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where such unpaid the Company or its Subsidiaries have not filed Tax would not have a Material Adverse EffectReturns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, there are no unpaid Taxes claimed to be due asserted or assessed by any Taxing Authority against the Company or any of its Subsidiaries. Section 3.14(b) of the Company Disclosure Letter lists all Tax Returns filed by the Taxing authority Company and its Subsidiaries for taxable periods ended on or after December 31, 2011, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of any jurisdiction, audit. Parent has received (or had made available to it) correct and the officers complete copies of all federal and state income Tax Returns filed by the Company and each Subsidiary know of no basis its Subsidiaries for taxable periods ended on or after December 31, 2011 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by the Company or any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed of its Subsidiaries with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods respect to and including the dates of such financial statementsthose taxable periods.
(c) There are no Liens on the Company’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP in the Company Financial Statements.
(d) Neither the Company nor any Subsidiary is a party of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection extension of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien time with respect to Taxes has been filed and no deficiency an income Tax assessment or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiarydeficiency.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has its Subsidiaries have withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Third Party.
(f) Except as listed on Section 3.14(f) of the wages or salaries of employeesCompany Disclosure Letter, and neither the Company nor any Subsidiary of its Subsidiaries is liable (or has been) a party to any Tax allocation or sharing agreement. Neither the Company nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was the Company); or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 3.14(f) of the Company Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any Taxes for failure to comply with taxable year (whether the current year, a future year or a past year). As of the Closing Date, the Company and its Subsidiaries shall have no further liability or claim under such Applicable LawsTax allocation or sharing agreements.
(fg) Except as listed on Schedule 3.14(g) of the Company Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which the Company or any Subsidiary is a party and that is treated as a partnership for federal income Tax purposes.
(h) Neither the Company nor any Subsidiary has, nor has it ever had, a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or convention between the United States and such foreign country, nor has it otherwise taken steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(i) No claim, or notice of claim, claim has ever been made in the last five (5) years by an authority a Taxing Authority in a jurisdiction where the Company or a any Subsidiary does not file Tax Returns that the Company (or such Subsidiary Subsidiary) is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual or legal basis for any such claim.
(gj) Neither the Company nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither the Company nor any Subsidiary is or has been a member United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither the Company nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an affiliated group of corporations international boycott within the meaning of Section 1504(a) 999 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(hm) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation that, as of the date hereof, is a “reportable listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). The Company and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code and Treasury Regulations promulgated thereunder with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either the Company or any Subsidiary, and, except as listed on Section 3.14(n) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has obtained a private letter ruling or closing agreements from the IRS (or any similar provision of non-U.S., state or local Lawcomparable ruling from any other Taxing Authority).
(io) Neither the Company nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; or (C) a “passive foreign investment company” nor has the Company or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) The Company isand each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 3.14(q) of the Company Disclosure Letter, there is no agreement, contract or arrangement to which the Company or any Subsidiary is a party that would, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither the Company nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) pursuant to Section 481 of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(s) The Company and its Subsidiaries have complied in all material respects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, the Company and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the extent required by Law, remit such unclaimed property to the applicable Governmental Entity. The Company’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the foregoing representations.
(t) All transactions for taxable years for which the statute of limitations is still open (including but not limited to sales of goods, loans, and provision of services) between (i) the Company or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by the Company (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of the Company and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Company Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company and each Subsidiary in filing its Tax Returns. Since the filing of the Company Financial Statements, neither the Company nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) The Company operates at least one significant historic business line, or owns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d).
(w) The Company has provided or otherwise made available to Parent all times beenof the Company’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to the Company or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of the Company or its Subsidiaries that have been received since December 31, classified as a corporation for U.S. federal income tax purposes2011.
Appears in 2 contracts
Sources: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Tax. (a) All The Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that the Company was required to have been filed. All Tax Returns filed by or with respect to the Company are true, correct and each Subsidiary have been timely filed complete in all material respects. All Taxes owed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes or required to be paid remitted) by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown or required to be shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to which such Tax Returns applyappropriate Governmental Body.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by To the Taxing authority of any jurisdiction, and the officers Knowledge of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payablethe Sellers, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. To the Knowledge of the Company and the Sellers, there are no Encumbrances on any of the assets of the Company that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.13 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which the Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all Tax rulings and similar determinations requested or received by the Company or Sellers, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material Tax elections that were made by or on behalf of the Company. The Company has delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, the Company during the six-year period ending on the date hereof.
(gc) Neither the The Company nor any Subsidiary has (i) have never been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code Affiliated Group filing a combined consolidated federal income Tax tax return (other than a group the common parent of which was the Company), (ii) has never been a party to any Tax sharing, indemnification or any similar provision of non-U.S.allocation agreement, state or local Law) nor does the Company or owe any Subsidiary of the Company amount under any such agreement, (iii) does not have any liability for Taxes of any other Person person under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local or local Law) foreign law, and including any arrangement for group relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract, or otherwise, and (iv) has never been a party to any joint venture, partnership or other than agreement or arrangement that could be treated as a partnership for Tax purposes.
(d) The Company has never constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for a tax-free treatment under Code Section 355.
(e) The Company has withheld or collected, and timely paid to the consolidated group appropriate Governmental Body, all Taxes required to have been withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to any employee, customer, creditor, stockholder, independent contractor, or other third party.
(f) There is no basis for any Governmental Body to, and neither Sellers nor any director or officer (or employee responsible for Tax matters) of which the Company expects any Governmental Body to, assess any additional Taxes for any period. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted (or to be paid, collected or permitted) by the Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any of the Sellers or Company has Knowledge. The Company has not waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of the Company has been requested, granted or currently is in effect.
(g) Since the parent corporationInterim Date, the Company has not incurred any Liability for Taxes outside the ordinary course of business.
(h) Neither the The Company nor any Subsidiary has engaged not, directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) that could give rise to would constitute (i) a disclosure obligation as a “"reportable transaction” under " or "listed transaction" as defined in Treasury Regulation Section 6011 of 1.6011-4 or (ii) a "tax shelter" as defined in Code Section 6111 and the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)thereunder.
(i) The Company iswill not 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, including as a result of: (i) a "closing agreement" as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date; (ii) change in method of accounting under Code Section 481(c); (iii) deferred intercompany gain or excess loss account under Treasury Regulations under Code Section 1502; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(j) Schedule 4.13 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which the Company is a party that is a "nonqualified deferred compensation plan" within the meaning of Code Section 409A and the Treasury Regulations thereunder. Each such nonqualified deferred compensation plan (i) complies, and is operated and administered in accordance, with the requirements of Code Section 409A, the Treasury Regulations thereunder and any other IRS guidance issued thereunder and (ii) has at all times been, classified as a corporation for U.S. federal income tax purposesbeen operated and administered in good faith compliance with Code Section 409A from the period beginning on the adoption of such nonqualified deferred compensation plan.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Alpine 4 Technologies Ltd.), Stock Purchase Agreement (Alpine 4 Technologies Ltd.)
Tax. (a) All The Company and the Subsidiaries have duly and timely filed with the appropriate taxing authorities all material federal, state and local income Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Returns required to be filed through the date hereof and will duly and timely file any such returns required to be filed on or prior to the Closing. Such Tax Returns and other declarations and statements with respect to Taxes information filed are (collectivelyand, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely extent they will be filed (taking into account any extensionsprior to the Closing, will be) and all such Tax Returns are complete and accurate and disclose in all Taxes required to be paid by or with respect to material respects. Neither the Company and each Subsidiary nor the Subsidiaries have pending any request for the periods covered thereby, except for Tax Returns the failure an extension of time within which to file would not have a Material Adverse Effect. All Taxes (whether federal, state or not shown on any local income Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyReturns.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid All Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know the Subsidiaries in respect of no basis for any periods (or portions thereof) ending at or prior to the Closing have been paid by the Company and the Subsidiaries or such claim. The provisions for Taxes payable, if any, (other than income Taxes) are shown as due and payable after the Closing on the financial statements filed of the Companies and the Subsidiaries in accordance with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsGAAP.
(c) No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes or material Tax Returns of the Company or the Subsidiaries. Neither the Company nor any Subsidiary is of the Subsidiaries has received a party to any claim, dispute, audit, pending Action or proceeding, nor is written notice of any such claimpending audits or proceedings. There are no outstanding waivers extending the statutory period of limitation relating to the payment of Taxes due from the Company or any of the Subsidiaries.
(d) Neither the IRS nor any other taxing authority (whether domestic or foreign) has asserted in writing, disputeor to the best knowledge of the Company and the Subsidiaries, Action or proceeding threatened by any Taxing authorityis threatening to assert, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidof the Subsidiaries any material deficiency or material claim for Taxes in excess of the reserves established therefor.
(de) No lien with respect to There are no Liens for Taxes has been filed and no deficiency upon any property or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations assets of the Company or any Subsidiary has of the Subsidiaries, except for Liens for Taxes not yet due and payable and liens for Taxes that are being contested in good faith by appropriate proceedings as set forth on Schedule 3.20(e) and as to which adequate reserves have been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied established in all material respects accordance with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable LawsGAAP.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where Neither the Company nor the Subsidiaries has any obligation under any Tax sharing agreement or a Subsidiary does not file Tax Returns that the Company or similar arrangement with any other Person with respect to Taxes of such Subsidiary is or may be subject to taxation by that jurisdictionother Person.
(g) Neither the Company nor the Subsidiaries will recognize any Subsidiary has been taxable income or become liable for any Tax as a member result of an affiliated group of corporations within the meaning of Section 1504(a) any of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) Internal Transactions. The Company is, and has at all times been, classified never been treated as a corporation for U.S. federal income tax purposespurposes and is not liable for any Tax on its income.
Appears in 2 contracts
Sources: Note Purchase Agreement (Icahn Carl C Et Al), Note Purchase Agreement (American Real Estate Partners L P)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax 10.1 The Seller has duly and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any valid extensions) filed, or caused to be filed, all Tax returns that relate to the Business Assets (including any income derived therefrom) required to be filed by it (or on its behalf) and all such Tax Returns are returns were true, correct and complete and accurate and disclose in all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectmaterial respects. All Taxes relating to the Business Assets (whether or not shown on including any Tax Returnincome derived therefrom) for which due and owing by the Company or any Subsidiary may be liable Seller have been timely paidpaid or, except where payment is not yet due, the Seller has made an adequate provision for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyTaxes.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. 10.2 The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that Seller has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for received any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been claim made by an authority a Tax Authority in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns returns that the Company or such Subsidiary Seller is or may be subject to taxation by that jurisdictionjurisdiction in relation to the Business Assets or any income derived therefrom.
(g) Neither 10.3 There is no Tax deficiency relating to the Company Business Assets or any income derived therefrom outstanding, assessed or proposed in writing against the Seller, nor has the Seller executed any Subsidiary has been a member waiver of an affiliated group any statute of corporations within limitations on or extending the meaning period for the assessment or collection of Section 1504(a) any Tax.
10.4 No Tax audit, action, suit, proceeding, investigation or claim is now pending or, threatened against the Seller, by any Tax Authority in connection with any Tax returns filed by the Seller or with respect to its assets or income that relate to the Business Assets.
10.5 There are no Tax rulings, requests for rulings or closing agreements relating to the Taxation of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does Business Assets that could reasonably be expected to affect the Company or any Subsidiary of the Company have any Purchaser’s liability for Taxes with respect to the Business Assets for any period after the Closing Date. The Seller has provided to the Purchaser complete and correct copies of all private letter rulings, revenue agent reports, information document requests, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by or agreed to by or on behalf of the Seller and relating to Taxes with respect to the Business Assets (including any income derived therefrom) for all taxable periods for which the statute of limitations has not yet expired.
10.6 The Seller’s has not filed Tax returns in any jurisdiction outside the United States as a result of having a permanent establishment or other Person under Treasury Regulations § 1.1502-6 place of business in that jurisdiction related to the Business Assets.
10.7 The Seller has complied with all Laws relating to the payment and withholding of Taxes (to the extent relating to the Business Assets or any similar provision of non-U.S., state or local Lawincome derived therefrom) or otherwise, and has duly and timely withheld and paid over to the appropriate Tax Authority all amounts required to be so withheld and paid under applicable laws.
10.8 There are no Encumbrances for Taxes (other than the consolidated group of which the Company is currently the parent corporation.
(hTaxes not yet due and payable) Neither the Company nor upon any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Business Assets.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (FXCM Inc.), Asset Purchase Agreement (FXCM Inc.)
Tax. Except as would not have, individually or in the aggregate, a Material Adverse Effect:
(a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to be filed by the Acquired Companies have been filed by or with respect to in the Company prescribed form and each Subsidiary have been timely filed (taking into account any extensions) within the prescribed time and all such Tax Returns are true, complete and accurate correct;
(b) Each of the Acquired Companies has duly and disclose timely paid all Taxes required to be paid by or with respect to the Company due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (payable whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for including all installments on account of Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.current year;
(c) Neither There are no Liens for Taxes against any of the Acquired Companies;
(d) Each of the Acquired Companies has not (i) waived any statute of limitations in respect of Taxes or (ii) agreed to any extension of time with respect to a Tax assessment or deficiency;
(e) No deficiencies exist or, to Seller’s Knowledge, have been asserted with respect to Taxes of any of the Acquired Companies; and no Acquired Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes Taxes, nor, to Seller’s Knowledge, has such an event been asserted or threatened against any of the Company Acquired Companies, or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.their assets;
(f) No claim, Each of the Acquired Companies has duly and timely withheld all Taxes required by Law to be withheld by it (including Taxes required to be withheld by it in respect of any amount paid or notice credited or deemed to be paid or credited by it to or for the account of claim, any Person) and has ever been made duly and timely remitted to the appropriate tax authority such Taxes and other amounts required by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may Law to be subject to taxation remitted by that jurisdiction.it; and
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) Each of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes Acquired Companies has duly and timely collected all amounts on account of any other Person under Treasury Regulations § 1.1502-6 (sales or any similar provision of non-U.S.transfer taxes, state including goods and services, harmonized sales and provincial or local Law) or otherwiseterritorial sales taxes, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise required by Law to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, be collected by it and has at all times been, classified as a corporation for U.S. federal income tax purposesduly and timely remitted to the appropriate authority any such amounts required by Law to be remitted by it.
Appears in 2 contracts
Sources: Membership Interest and Share Purchase Agreement, Membership Interest and Share Purchase Agreement (Residential Capital, LLC)
Tax. Except as set forth on Section 3.13 of the Company Disclosure Letter:
(a) All (i) all material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Tax Authority or furnished to any Person by or with respect to on behalf of the Company and each Subsidiary or any of its Subsidiaries have been timely filed or furnished (taking into account any extensionsextension of time) and in accordance with all applicable Laws; (ii) all such Tax Returns are complete and true, accurate and disclose complete in all material respects and have been prepared in material compliance with all applicable Laws; (iii) all material Taxes due and payable by the Company or any of its Subsidiaries (including any Taxes that are required to be deducted and withheld in connection with any amounts paid by or with respect owing to the Company and each Subsidiary for the periods covered therebyany employee, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (stockholder, creditor, independent contractor or other third party), whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable , have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company or withheld and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent remitted to the periods to which such appropriate Tax Returns apply.
Authority; and (biv) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries have materially complied with all sales, use, value-added and similar Tax laws; except, in each Subsidiary know of no basis for any such claim. The provisions case, for Taxes payable, if any, shown on that are being contested in good faith in appropriate proceedings and (in the financial statements filed case of Taxes due prior to the date of this Agreement) for which adequate reserves have been established in accordance with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither GAAP in the Company nor any Subsidiary Balance Sheet; it being understood that no representation is a party made as to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection amount of any Taxes and no claim for the assessment net operating losses, net capital losses, Tax credits or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations similar Tax attributes of the Company or any Subsidiary of its Subsidiaries available for any taxable period ending after the Closing Date;
(b) no written claim has been proposed, asserted or assessed against received by the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid its Subsidiaries from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority Tax Authority in a jurisdiction where the Company or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return that the Company or any of its Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction;
(c) there are no material Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(d) (i) no outstanding written claim has been received by, and to the Knowledge of the Company no such Subsidiary claim is threatened, and no audit, action, or proceeding is in progress, against or with respect to the Company or any of its Subsidiaries in respect of any material amount of Tax; (ii) to the Knowledge of the Company, no outstanding written claim has been received by or threatened, and no audit, action, or proceeding is in progress against or with respect to any consolidated or combined group of which the Company or any of its Subsidiaries was included in respect of any material amount of Tax for which the Company or any of its Subsidiaries is reasonably expected to be liable; and (iii) all material deficiencies, assessments or proposed adjustments asserted against the Company or any of its Subsidiaries or any consolidated or combined group in which the Company or any of its Subsidiaries is or may be subject to taxation was included by that jurisdiction.any Tax Authority have been paid or fully and finally settled;
(ge) Neither neither the Company nor any Subsidiary of its Subsidiaries (i) is or, since January 1, 2014, has been a member of an affiliated group of corporations (within the meaning of Section 1504(a) 1504 of the Code filing Code) or an affiliated, consolidated, combined, unitary, or aggregate group for state, local or foreign Tax purposes, other than a combined federal income Tax return group of which the Company or any of its Subsidiaries is the common parent, (ii) has any material Liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor, by Contract (other than commercial agreements the primary purpose of which does not relate to Taxes) nor or by operation of law, or (iii) is a party to any Tax sharing, Tax allocation or Tax indemnification agreement (other than any agreement or arrangement solely among the Company and its Affiliates or any commercial agreements the primary purpose of which does not relate to Taxes);
(f) no waiver or extension of any statute of limitations in respect of a material amount of Taxes or any extension of time with respect to a material Tax assessment or deficiency is in effect for the Company or any Subsidiary of its Subsidiaries or, solely with respect to any such waiver or extension that is within the Knowledge of the Company have any liability for Taxes and that is in respect of any material amount of Tax for which the Company or any of its Subsidiaries is reasonably expected to be liable, any consolidated or combined group in which the Company or any of its Subsidiaries was included;
(g) neither the Company nor any of its Subsidiaries participates or has participated in a “listed transaction” or “transaction of interest”, each within the meaning of Section 1.6011-4(b) of the Regulations;
(h) neither the Company nor any of its Subsidiaries has entered into any “closing agreement” under Section 7121 of the Code, or other Person under agreement with any Tax Authority in respect of Taxes that remains in effect, and no request for a ruling, relief or advice that relates to the Taxes or Tax Returns of the Company or any of its Subsidiaries is currently pending with any Governmental Authority, and no such ruling, relief or advice has been obtained and remains in effect;
(i) all transactions and agreements between or among any of the Company and its Affiliates are, and were entered into, in material compliance with the requirements and principles of Section 482 of the Code and the Treasury Regulations § 1.1502-6 thereunder, including any reporting requirements set forth thereunder, and are, and have been, in material compliance with the requirements and principles of any comparable provisions of state, local or foreign law, including any reporting requirements set forth thereunder (except, in each case, for any transaction with respect to which adequate reserves have been established in accordance with GAAP in the Company Balance Sheet;
(j) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized;
(k) during the past two (2) years neither the Company nor any Subsidiary has been the distributing or controlled corporation in any transaction intended to qualify under Section 355 of the Code, and any such transaction set forth in the Disclosure Letter has in fact so qualified and has not resulted in gain recognition under Section 355(d) or (e) of the Code;
(l) neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of any (i) adjustment pursuant to Section 481 of the Code (or any similar provision of non-U.S.state, state local or local foreign Law) or otherwise, other than the consolidated group as a result of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged a change in any transaction that could give rise method of accounting made with respect to a disclosure obligation as a “reportable transaction” under period prior to the Closing, (ii) installment sale or open transaction disposition made on or entered into prior to the Closing, (iii) prepaid amount received on or prior to the Closing, or (iv) election pursuant to Section 6011 108(i) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S.state, state local or local foreign Law).) made prior to the Closing;
(m) the Company has not taken a position on a Tax Return that it is a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code;
(n) if either the Company or any of its Subsidiaries has made an election pursuant to Section 965(h) of the Code, (i) The such election was properly and timely made in compliance with Section 1.965-7(b)(2) of the Regulations and(ii) any installment payments due pursuant to such election that have not yet been paid have been adequately provided for, in accordance with GAAP, in the Company isBalance Sheet;
(o) Notwithstanding any other provisions of this Agreement to the contrary, the representations and has at all times beenwarranties made in Section 3.6, classified as a corporation for U.S. federal income tax purposesSection 3.7, Section 3.8, Section 3.13 and Section 3.15 are the sole and exclusive representations and warranties of the Company and its Subsidiaries with respect to Taxes.
Appears in 1 contract
Sources: Merger Agreement (Sothebys)
Tax. For purposes of this Section 6.17, the term “Seller” shall be construed to refer also to each predecessor-in-interest of Seller and each other Person for whose liability for Taxes Seller has or may have Liability.
(a) All Seller has filed or caused to be filed on a timely basis all Tax returns, Tax reports, information returns, declarations of estimated Tax Returns and other declarations and statements all reports with respect to Taxes (collectively, “Tax Returns”) that are or were required to have been be filed pursuant to Applicable Requirements by Seller or for periods ending on the Closing Date, with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Business, Acquired Assets, activities, income or operations of Seller. All Tax Returns are complete and accurate and disclose all Taxes required to be paid by or reports with respect to Taxes filed by Seller are true, correct and complete in all respects. Seller has timely paid, or made provision in the Company Seller Interim Balance Sheet for all Taxes for periods ending on the Closing Date related to the Acquired Assets, Business, income and each Subsidiary operations of Seller that have or may have accrued or become due for the all periods covered therebyby the Tax Returns, or pursuant to any assessment received by Seller, except for Tax Returns such Taxes, if any, as are listed in Schedule 6.17(a) and are being contested in good faith and as to which adequate reserves (determined in accordance with GAAP) have been provided in the failure Seller Interim Balance Sheet. Seller currently is not the beneficiary of any extension of time within which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent Return related to the periods to which such Tax Returns applyBusiness or Acquired Assets.
(b) Except where such unpaid Seller has delivered or made available to Buyer copies of all Tax would not have Returns related to the Business or Acquired Assets filed since January 1, 2010. Schedule 6.17(b) sets forth each state, county, local municipal, domestic or foreign jurisdiction or Governmental Authority in or with which, with respect to the Business or Acquired Assets, Seller (i) files, or is or has been required to file January 1, 2010, a Material Adverse EffectTax Return, there are no unpaid Taxes claimed (ii) is required to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis register for any such claim. The provisions Tax purpose, (iii) is or has been liable for Taxes payableany Tax on a “nexus” basis at any time, if any(iv) is qualified to do business, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes(v) owns or regularly uses property, whether (vi) has any employee or not disputedin which any employee is regularly present, and for all periods to and including the dates of such financial statementsor (vii) has any agent, representative or distributor.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no No claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made or is expected to be made by an authority any Governmental Authority in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns that the Company or such Subsidiary Seller is or may be subject to taxation by that jurisdiction. Schedule 6.17(c) contains a complete list of all audits, examinations and investigations with respect to Taxes or Tax Returns of Seller or related to the Business or Assets that have been audited or currently are under audit and a complete description of any and all deficiencies or other amounts that were paid or are currently being contested. All such deficiencies or other amounts proposed as a result of such audits have been paid, reserved against, or settled without further liability (or are being contested in good faith by appropriate proceedings as described in Schedule 6.17(c)). There is no dispute or claim concerning any Taxes related to the Business or Assets either (i) claimed or raised by any Governmental Authority in writing or (ii) as to which Seller has Knowledge. Seller has not given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the assessment or payment of Taxes with respect to the Business or Acquired Assets. There is no Encumbrance on any of the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Tax, and Seller has no Knowledge of any basis for assertion of any claims attributable to Taxes which, if adversely determined, would result in any such Encumbrance.
(d) Seller (i) has not been a member of an Affiliated Group filing a consolidated federal income Tax Return and (ii) does not have any Liability for the Taxes of any Person under Treasury Regulation §1.1502-6 or similar Law, as a transferee or successor, by Contract, or otherwise.
(e) No power of attorney with respect to Taxes has been executed by Seller or filed with any Governmental Authority with respect to Seller.
(f) Seller has complied in all material respects with all provisions of Tax Law relating to withholding, payment and remittance of Taxes and information reporting with respect thereto, and Seller has, within the time and in the manner prescribed by Tax Law, paid over to the proper Governmental Authorities all amounts required.
(g) Neither There is no Tax ruling, request for ruling or settlement, compromise, closing or Tax collection agreement in effect or pending which does or could affect the Company nor Liability of Seller or Buyer for Taxes with respect to the Acquired Assets or Business for any Subsidiary has been period after the Closing Date.
(h) No provisions of any Assumed Contracts are properly treated for United States federal income tax purposes as an entity (including a member of an affiliated group of corporations partnership) or as Indebtedness.
(i) No Acquired Asset is (i) “tax exempt use property” within the meaning of Section 1504(a168(h)(1) of the Code filing or Section 470(c)(2) of the Code, (ii) tax-exempt bond financed property within the meaning of Section 168(g) of the Code, or (iii) subject to a combined lease under Code Section 7701(h) or any predecessor provision.
(j) Seller has never been a party to a “reportable transaction,” as such term is defined in Treasury Regulations Section 1.6011-4(b)(1). Seller has disclosed on its federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction Returns all positions taken therein that could give rise to a disclosure obligation as a “reportable transaction” under substantial understatement of federal income Tax within the meaning of Section 6011 6662 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Code.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect To the extent relating to the Company and each Subsidiary have been Acquired Assets or Assumed Liabilities, (i) since January 1, 2014, Seller has (A) timely filed (or caused to be timely filed) (after taking into account any extensionsextension of time within which to file) and all such Tax Returns are complete and accurate and disclose all Taxes required to be filed by it; and (B) timely paid by (or with respect has caused to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All be timely paid on its behalf) all Taxes (whether or not shown or required to be shown on any Tax Return); (ii) for Seller currently is not the beneficiary of any extension of time within which the Company or to file any Subsidiary may be liable Tax Return; (iii) since January 1, 2014, Seller has withheld and paid all Taxes required to have been timely paidwithheld and paid in connection with any amount paid or owing to any employee, except for Taxes the failure of which to pay would not independent contractor, creditor, stockholder or other third party, and all IRS Forms W-2 and 1099 required with respect thereto have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of been properly completed in all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
respects and timely filed; (biv) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis deficiencies for any such claim. The provisions for material amount of Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has have been proposed, asserted or assessed against Seller as of the Company date hereof; and (v) there are no Encumbrances (other than Permitted Encumbrances) on any of the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any SubsidiaryTax and to the Knowledge of Seller there is no basis for assertion of any claims attributable to Taxes which, if adversely determined, would result in any such Encumbrance.
(eb) The Company and each Subsidiary has complied in all material respects with all Applicable Laws To the extent relating to the payment and withholding Acquired Assets or Assumed Liabilities, (i) no examination or audit of Taxesany material Tax Return of Seller or any administrative or judicial proceeding in respect of any material amount of Tax is currently pending or threatened in writing; (ii) since January 1, including sales and use Taxes2014, no claim has been made, and has withheld and paid over all amounts required by Applicable Laws to the Knowledge of Seller no claim is expected to be withheld and paid from the wages or salaries of employeesmade, and neither the Company nor by any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority Governmental Authority in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns that the Company or such Subsidiary Seller is or may be subject to taxation by that jurisdiction; and (iii) there is no current dispute or claim concerning any Taxes either (A) claimed or raised by any Governmental Authority in writing or (B) as to which Seller has Knowledge.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Each Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that such Company is required to have been filed. All Tax Returns filed by or with respect to the each Company are true, correct and each Subsidiary have been timely filed (taking into account any extensions) and complete in all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectrespects. All Taxes owed (or to be remitted) by any Company (whether or not shown on any Tax Return) for have been paid to the proper Governmental Body. No claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Companies that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.5 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which any Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all rulings and similar determinations with respect to Taxes requested or received by any Company or Seller relating to any Subsidiary may Company, (v) identifies those Tax Returns that are due to be liable have been timely paid, except for Taxes filed within 90 days after the failure of which to pay would not have date hereof and (vi) contains a Material Adverse Effect. The Company complete and each Subsidiary have set aside on its books provision reasonably adequate for the payment accurate description of all material elections relating to Taxes for periods subsequent that were made by or on behalf of any Company. The Target has delivered or made available to the periods to which such Buyer true, correct and complete copies of all Tax Returns applyfiled by, and all examination reports, and statements of deficiencies assessed against or agreed to by, any Company during the six-year period ending on the date hereof.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionEach Company has withheld or collected, and paid to the officers of the Company proper Governmental Body, all Taxes required to have been withheld or collected and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputedremitted, and for complied with all periods information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to and including the dates of such financial statementsany employee, customer, creditor, stockholder, independent contractor, or other third party.
(c) Neither the There is no basis for any Governmental Body to, and no Seller or director or officer (or employee responsible for Tax matters) of any Company nor expects any Subsidiary Governmental Body to, assess any additional Taxes for any period for which Tax Returns have been filed. There is a party to no dispute or claim concerning any claimLiability for Taxes paid, dispute, audit, pending Action collected or proceeding, nor is any such claim, dispute, Action or proceeding threatened remitted by any Taxing authority, for the assessment Company either (i) claimed or collection of raised by any Taxes and no claim for the assessment Governmental Body in writing or collection of (ii) as to which any Taxes Seller or Company has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidKnowledge.
(d) No lien with respect to Taxes Company has been filed and no deficiency waived any statute or addition to Taxes, interest or penalties for any Taxes period of limitations with respect to any incomeTax or agreed, properties or operations been requested by any Governmental Body to agree, to any extension of the time with respect to any Tax. No extension of time within which to file any Tax Return of any Company or any Subsidiary has been proposedrequested, asserted granted or assessed against the Company or any Subsidiarycurrently is in effect.
(e) The No Company and each Subsidiary has complied filed a consent under Code § 341(f), as in all material respects with all Applicable Laws relating effect prior to the payment Jobs and withholding Growth Tax Reconciliation Act of Taxes2003, including sales and use Taxesconcerning collapsible corporations. No Company has made any payments, and has withheld and paid over all amounts required by Applicable Laws is obligated to be withheld and paid from the wages or salaries of employees, and neither the Company nor make any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claimpayments, or notice is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of claim, Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Company is a party to any Tax allocation, sharing, reimbursement or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the similar agreement. No Company nor any Subsidiary has been a member of an any “affiliated group of corporations within the meaning of Section group” as defined in Code § 1504(a) of the Code filing a combined federal income Tax return (or any similar group defined under a similar provision of non-U.S.state, state local or local foreign Law) nor does filing a consolidated federal, state, local or foreign income Tax Return (other than a group the common parent of which was the Target). No Company or has any Subsidiary of the Company have any liability Liability for Taxes of any Person (other Person than any Company) under Treasury Regulations Regulation § 1.1502-6 (or any similar provision of non-U.S.any other Law), state as a transferee or local Law) successor, by Contract, or otherwise. No Company has participated in an international boycott within the meaning of Code § 999. No Company has agreed, other or is required to make, any adjustments under Code § 481(a) by reason of a change in method of accounting or otherwise. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the date hereof. No Company has made, or is bound by, any election under Code § 197 or 1361.
(f) The unpaid Taxes of the Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the consolidated group face of which the Interim Balance Sheet (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Companies in filing their Tax Returns.
(g) No Company is currently has, directly or indirectly, participated in any transaction (including, the parent corporationtransactions contemplated by this Agreement) that would constitute (i) a “reportable transaction” or “listed transaction” as defined in Treasury Regulation § 1.6011-4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(h) Neither The execution and delivery of this Agreement and the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 performance of the Code and Treasury Regulations promulgated thereunder (Transactions will not cause the Buyer or any similar provision of non-U.S., state or local Law)Company to have any Liability for any Tax.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Brigus and each of its Subsidiaries and affiliates has duly and timely filed all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect them for periods prior to the Company and each Subsidiary have been timely filed (taking into account any extensions) date hereof and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of in all material Taxes for periods subsequent to the periods to which such Tax Returns applyrespects.
(b) Except where such unpaid Tax would not have Brigus and each of its Subsidiaries and affiliates has paid on a Material Adverse Effecttimely basis all Taxes which are due and payable, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionall assessments and reassessments, and all other Taxes due and payable by them on or before the officers date hereof, other than those which are being or have been contested in good faith and in respect of which reserves have been provided in the Company most recently published consolidated financial statements of Brigus. Brigus and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Brigus for any Taxes of Brigus and each Subsidiary know of no basis its Subsidiaries and affiliates for any the period covered by such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, that have not been paid whether or not disputedshown as being due on any Tax Returns. Since such publication date, and no material liability in respect of Taxes not reflected in such statements or otherwise provided for all periods has been assessed, proposed to and including be assessed, incurred or accrued, other than in the dates ordinary course of such financial statementsbusiness.
(c) Neither the Company No material deficiencies, litigation, proposed adjustments or matters in controversy exist or have been asserted with respect to Taxes of Brigus or any of its Subsidiaries or affiliates, and neither Brigus nor any Subsidiary of its Subsidiaries or affiliates is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes such event has been asserted or, to the knowledge of Brigus, threatened against the Company Brigus or any Subsidiary that has not been settled with all amounts due having been paidof its Subsidiaries or affiliates or any of their respective assets.
(d) No lien with respect to Taxes claim has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Entity in a jurisdiction where the Company Brigus or a Subsidiary any of its Subsidiaries or affiliates does not file Tax Returns that the Company Brigus or such Subsidiary any of its Subsidiaries or affiliates is or may be subject to taxation Tax by that jurisdiction.
(e) There are no Liens (other than Permitted Encumbrances) with respect to Taxes upon any of the assets of Brigus or any of its Subsidiaries or affiliates.
(f) Brigus and each of its Subsidiaries and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so.
(g) Neither There are no outstanding agreements extending or waiving the Company nor statutory period of limitations applicable to any Subsidiary has been a member claim for, or the period for the collection or assessment or reassessment of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (Taxes due from Brigus or any similar provision of non-U.S., state its Subsidiaries or local Law) nor does the Company affiliates for any taxable period and no request for any such waiver or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company extension is currently the parent corporationpending.
(h) Neither Brigus and each of its Subsidiaries and affiliates has made available to Primero true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 applicable statutory periods of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)limitations have not expired.
(i) The Company isNeither Brigus nor any of its Subsidiaries or affiliates has ever directly or indirectly transferred any property to or supplied any services to or acquired any property or services from a Person with whom it was not dealing at arm's length (for the purposes of the Tax Act) for consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, supply or acquisition of the property or services.
(j) There are no circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any equivalent provision under provincial or foreign Law, to Brigus or any of its Subsidiaries or affiliates. None of Brigus nor any of its Subsidiaries or affiliates has made, prepared and/or filed any elections, designations or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the Effective Date.
(k) Each of Brigus and Brigus SpinCo and Brigus Gold ULC, 7153945 Canada Inc., and has at all times beenLinear Gold Holdings Corp. is not a non-resident of Canada within the meaning of the Tax Act. Each of Brigus’ Subsidiaries (other than Brigus SpinCo, classified as Brigus Gold ULC, 7153945 Canada Inc., and Linear Gold Holdings Corp.) is a corporation for U.S. federal income tax purposesnon-resident of Canada within the meaning of the Tax Act.
Appears in 1 contract
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax 16.1 The Company has timely made all income and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been filed be made by or with respect it, and supplied all information required to the Company and each Subsidiary have been be supplied, to any Tax Authority on a timely filed (taking into account any extensions) basis, and all such Tax Returns and information are complete and true, accurate and disclose complete in all material respects and are not the subject of any material dispute with a Tax Authority.
16.2 The Company has not requested any Tax Authority for any extensions of time for the filing of any currently outstanding Tax Returns or other documents relating to Tax not being an extension available to companies or taxpayers generally.
16.3 As of the date hereof, the Company is not currently, subject to any disputes, audits or Action by any Tax Authority except as set out in Section 16.3 of Annex 1 to the Disclosure Letter.
16.4 All documents on which stamp duty or any other transfer, registration or documentary Tax or duty is chargeable, and which are in the possession of the Company, have been duly stamped (or, as the case may be, such transfer, registration or documentary Tax has been duly paid). All Taxes required to be paid due and payable by the Company and all assessments of Taxes (including interest and penalties) imposed on it (regardless of whether the Company is directly liable for such Taxes or secondarily liable for such Taxes for which the Seller or other third party was primarily liable) with respect to any taxable period (or portion thereof) ending on or before the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable Completion Date have been timely paid, except properly and duly paid or properly reserved for Taxes in the failure books and records of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyCompany.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there 16.5 There are no unpaid Taxes of the Company in any amount claimed to be due and payable by the Taxing authority any Tax Authority of any jurisdictionjurisdiction with respect to any taxable period (or portion thereof) ending on or before the Completion Date, and the officers Company is not aware of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action and there is no dispute or proceeding threatened by claim concerning any Taxing authority, for the assessment or collection Tax liability of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes any taxable period (or portion thereof) ending on or before the Completion Date that has been filed proposed or asserted by any Tax Authority in writing.
16.6 The Company has properly and no deficiency duly deducted or addition to Taxes, interest or penalties for any withheld all Taxes with respect to any income, properties taxable period (or operations of portion thereof) ending on or before the Company or any Subsidiary Completion Date which it has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required obliged by Applicable Laws to be deduct or withhold from all amounts paid by it (for the avoidance of doubt, including any deemed payment under Applicable Law) to all persons, including, without limitation, its officers, directors, employees, agents, independent contractors, service providers, and any foreign company, has properly and duly accounted to the relevant Tax Authority for all such Taxes so deducted or withheld and paid from the wages has otherwise complied with its legal obligations in compliance with Applicable Law in respect of such deductions or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawswithholdings.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor 16.7 There are no Encumbrances for Taxes over any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary assets of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of Permitted Encumbrances).
16.8 All material records which the Company is currently the parent corporationrequired by Applicable Law to keep for Tax purposes have been duly kept.
(h) Neither 16.9 All material transactions between the Company and any related parties, including current or past direct and indirect shareholders of the Company and its Affiliates were made on arm’s length terms to the extent required by Applicable Law; the Company has not received notice from any Tax Authority of any material adjustment for Tax purposes, or that any material adjustment is required to be made, to the terms on which any such transaction is treated as taking place; and the Company has maintained adequate related party or transfer pricing documentation to substantiate the pricing of any related party transactions to the extent required by Applicable Law.
16.10 The Company is not, and since January 1, 2018 has not been, treated for any Tax purpose as resident in a country other than Korea and the Company does not have, nor has it had since January 1, 2018, a branch, agency or permanent establishment in a country other than Korea.
16.11 The Company has not waived any Subsidiary has engaged statute of limitations in respect of any transaction that could give rise Taxes or agreed to any extension of time with respect to a disclosure obligation as Tax assessment or deficiency, in each case that is currently in effect. The Company is not a “reportable transaction” under Section 6011 party to or bound by any Tax allocation, sharing, or similar agreement with any member of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Seller’s Group that is currently in effect.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share Purchase Agreement (Prudential Financial Inc)
Tax. Except as set forth on Section 4.16(a) of the Disclosure Schedule,
(a) All Each Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that such Company was required to have been filed. All Tax Returns filed by or with respect to the each Company are true, correct and each Subsidiary have been timely filed (taking into account any extensions) and complete in all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectmaterial respects. All Taxes owed by each Company (whether or not shown on any Tax Return, including all installments on account of Taxes for the current Tax year) for which have been paid to the proper Governmental Body. No written claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or any Subsidiary may be liable subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances (other than Permitted Encumbrances) on any of the assets of any Company that arose in connection with any failure (or alleged failure) to pay any Tax. Section 4.16(a)(i) of the Disclosure Schedule contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which each Company has filed a franchise, income, employment, sale or use Tax Return at any time during the six-year period ending on the Closing Date, (ii) identifies those Tax Returns that have been timely paidaudited, except for (iii) identifies those Tax Returns that currently are the subject of audit, and (iv) lists all governmental rulings and similar determinations with respect to Taxes the failure of which to pay would not have a Material Adverse Effectrequested or received by each Company. The Company Target has delivered or made available to Buyer true, correct and each Subsidiary have set aside on its books provision reasonably adequate for the payment complete copies of all material Taxes for periods subsequent to the periods to which such franchise, income, employment, sales or use, and property Tax Returns applyfiled by, and all examination reports, and statements of deficiencies assessed against or agreed to by, each Company during the six-year period ending on the Closing Date.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionEach Company has withheld or collected, and paid to the officers of the Company proper Governmental Body, all Taxes required to have been withheld or collected and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputedremitted, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment information reporting and back-up withholding of Taxes, including sales and use Taxesrequirements, and has withheld and maintained all required records with respect thereto, in connection with amounts paid over all amounts required by Applicable Laws or owing to be withheld and paid from any employee, customer, creditor, equityholder, independent contractor, or other third party.
(c) Since the wages or salaries Interim Date, no Company has incurred any Liability for Taxes outside the Ordinary Course of employeesBusiness.
(d) To the Companies’ Knowledge, there is no basis for any Governmental Body to, and neither the Company Seller nor any Subsidiary is liable officer (or employee responsible for Tax matters) of any Company has been notified in writing that any Governmental Body intends to, assess any additional Taxes for any period for which Tax Returns have been filed. There is no investigation, audit, dispute or claim concerning any Liability for Taxes for failure paid, collected or remitted by any Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to comply which any Seller or any Company has Knowledge.
(e) No Company has waived any statute or period of limitations (which has not since closed) with such Applicable Lawsrespect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time (which has not since expired) with respect to any Tax. No extension of time within which to file any Tax Return of any Company is currently in effect.
(f) No claimCompany has filed a consent under Code § 341(f), as in effect prior to the Jobs and Growth Tax Reconciliation Act of 2003, concerning collapsible corporations. No Company has made any payments, is obligated to make any payments, or notice is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of claim, Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file disclosed on its U.S. federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of U.S. federal income Tax within the meaning of Code § 6662. No Company is a party to any agreement the principal subject matter of which is the allocation, sharing or such Subsidiary is reimbursement of Taxes (a “Tax Sharing Agreement”), excluding (for the avoidance of doubt) any lease, purchase order, supply agreement or may be subject to taxation by that jurisdiction.
(g) Neither other similar contract entered into in the Ordinary Course of Business. No Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code any Affiliated Group filing a combined federal consolidated U.S. federal, state, local or foreign (including Canadian provincial or municipal) income Tax return Return (or other than a group the common parent of which was the Target). No Company has any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability Liability for Taxes of any Person (other Person than any Company) under Treasury Regulations Regulation § 1.1502-6 (or any similar provision of nonany other Law), as a transferee or successor, or otherwise by operation of law. No Company has participated in an international boycott within the meaning of Code § 999. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-U.S.exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the Closing Date.
(g) No Company has, state directly or local Lawindirectly, participated in any transaction (including, the Transactions) that would constitute (i) a “reportable transaction” or otherwise, other than “listed transaction” as defined in Treasury Regulation § 1.6011-4 or (ii) a “tax shelter” as defined in Code § 6111 and the consolidated group of which the Company is currently the parent corporationTreasury Regulations thereunder.
(h) Neither No Company 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 Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “reportable transactionclosing agreement” under Section 6011 of the as described in Code and Treasury Regulations promulgated thereunder § 7121 (or any corresponding or similar provision of non-U.S.state, state local or foreign (including Canadian provincial or municipal) Tax Law) executed on or prior to the Closing Date; (C) intercompany transactions occurring at or prior to the Closing or any excess loss account in existence at Closing described in Treasury Regulations under Code § 1502 (or any corresponding or similar provision of state, provincial, municipal, local or foreign Tax Law); (D) installment sale or open transaction disposition made, prepaid amount received, on or prior to the Closing Date, except to the extent that such sale, disposition or prepayment results in an offsetting liability which is taken into account in the determination of Working Capital (as in the case, for example, a deposit or deferred revenue); or (E) election under Code § 108(i).
(i) The Each Company (other than the Target and Hercules) is, and has been at all times since its inception, either a corporation under subchapter C of the Code or a disregarded entity owned by a corporation under subchapter C of the Code for U.S. federal, and, as applicable, state and local income Tax purposes. Hercules is, and has been at all times since its inception, a corporation under subchapter C of the Code for U.S. federal, state and local income Tax purposes. The Target has been a partnership for U.S. federal, and, as applicable, state and local income Tax purposes from its inception until December 31, 2009, as of which date Target elected to be (and since such date has been, ) classified as a corporation for U.S. federal federal, state and local income Tax purposes. No Company owns an interest, directly or indirectly, in any joint venture, partnership, limited liability company, association, or other entity that is treated as a partnership for U.S. federal, state or local income tax purposes.
(j) No Company is subject to Tax in any country other than its place of incorporation or formation by virtue of having a permanent establishment or other fixed place of business in such other country. No Company is a “passive foreign investment company” within the meaning of Code § 1297. No Company is, nor at any time has been, subject to (i) the dual consolidated loss provisions of Code § 1503(d) or (ii) the recharacterization provisions of Code § 952(c)(2).
(k) None of sections 78, 80, 80.01, 80.02, 80.03 or 80.04 of the Income Tax Act (Canada), or any equivalent provision of the Tax legislation of any province have applied or will apply to any Canadian Resident Company at any time up to and including the Closing Date.
(l) No Canadian Resident Company has acquired property from a non-arm’s length Person, within the meaning of the Income Tax Act (Canada), for consideration, the value of which is less than the fair market value of the property acquired, in circumstances which could subject it to a liability under section 160 of the Income Tax Act (Canada).
(m) For all transactions between any Canadian Resident Company and any non-resident Person with whom such Company was not dealing at arm’s length during a taxation year commencing after 1998 and ending on or before the Closing Date, each Company has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Income Tax Act (Canada).
(n) Each Company that carries on business in Canada is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax and, if applicable, under Division I of Chapter VIII of Title I of the Quebec Sales Tax Act with respect to the Quebec sales tax.
(o) The Interests are not taxable Canadian property for purposes of section 116, and within the meaning, of the Income Tax Act (Canada).
(p) Sections 4.16 and 4.22 contain all of the Companies’ representations and warranties with respect to the matters relating to Tax addressed in such sections. For the sake of clarity, the preceding sentence does not apply to Article IX.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) by SAFE and SAFE SG with the competent Tax Authority and/or Governmental Authority and all such Tax Returns returns are true, correct and complete in any material respect pursuant to and accurate and disclose all Taxes required to be paid by or in accordance with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. applicable Laws.
(b) All Taxes which were due under the Tax returns referred to in the preceding paragraph (whether or not shown to be due on any such Tax Returnreturns) for which the Company or any Subsidiary may be liable have been duly and timely paid, except deducted or withheld, by SAFE and SAFE SG, or adequate provisions have been created and accounted for in the relevant SAFE Financials. All Taxes which are not yet due and payable but which relate to periods ending on or before the failure of which to pay would not Closing have a Material Adverse Effect. The Company been fully and each Subsidiary have set aside on its books provision reasonably adequate adequately provided for the payment of in all material Taxes for periods subsequent to respects in the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority books and records of any jurisdiction, SAFE and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsSAFE SG.
(c) Neither the Company nor any Subsidiary is a party to any claimSAFE and SAFE SG have deducted, dispute, audit, pending Action withheld or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with collected all amounts due having been paidrequired to be respectively deducted, withheld or collected by them on account of Taxes including all amounts required to be deducted, withheld or collected in respect of amounts deemed to be paid respectively by them, and have remitted all such amounts to the appropriate Governmental Entity when required by Law to do so.
(d) No lien with respect to There are no Encumbrances for Taxes has been filed and no deficiency upon the assets or addition to Taxesproperties of SAFE or SAFE SG, interest or penalties for any Taxes with respect to any income, properties or operations other than Encumbrances created solely by operation of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any SubsidiaryLaw.
(e) The Company SAFE and each Subsidiary has complied in all material respects SAFE SG have not been served with all Applicable Laws relating to any written notice of assessment or other written notices concerning the payment and withholding of Taxes, including sales and use Taxesto the LR Knowledge there are no audits, and has withheld and paid over all amounts required by Applicable Laws examinations, investigations, claims, disputes or other proceedings pending or threatened in writing with respect to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsor Tax returns of SAFE or SAFE SG.
(f) No claimAll the extraordinary transactions involving SAFE and/or SAFE SG (including, without limitation, any acquisition or notice sale of claim, has ever interests and/or businesses as a going concern) have been made by an authority performed in a jurisdiction where compliance with Tax Laws and all the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionapplicable Taxes have been duly and timely paid.
(g) Neither the Company nor any Subsidiary has SAFE and SAFE SG are and have been a member resident for tax purposes solely in their jurisdiction of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company incorporation and they do not have any liability for Taxes of any permanent establishment in other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationjurisdictions.
(h) Neither Any transaction between SAFE Group Companies or between any LR Group Companies and the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of SAFE Group Companies or between the Code SAFE Group Companies and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has their Related Parties have been priced at all times been, classified as a corporation arm’s length for U.S. federal income tax transfer pricing purposes.
Appears in 1 contract
Tax. (a) All 4.16.1. Each of Stratasys and its Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose all Taxes required to be paid by or with respect accurate, except to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the extent any failure of which to file or any inaccuracies in any filed Tax Returns, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse EffectEffect on Stratasys. All Taxes (whether shown to be due on such Tax Returns, or not shown on any Tax Return) for which the Company or any Subsidiary may be liable otherwise owed, have been timely paid, except for Taxes to the extent that any failure of which to pay pay, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectEffect on Stratasys. The Company Each of Stratasys and each Subsidiary have set aside on its books provision reasonably adequate for Subsidiaries has complied with all applicable Laws relating to Taxes including Laws relating to (i) the withholding and payment over to the appropriate Governmental Entity or other Tax authority of all material Taxes for periods subsequent required to be withheld by Stratasys or any of its Subsidiaries, (ii) information reporting with respect to, any payment made or received by Stratasys or any of its Subsidiaries and (iii) the keeping of books and records, except to the periods extent any failure to which such Tax Returns apply.
(b) Except where such unpaid Tax so comply, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claimEffect on Parent.
4.16.2. The provisions for Taxes payable, if any, shown on the most recent financial statements filed with contained in the Stratasys SEC Documents are sufficient reflect an adequate reserve for all accrued Taxes payable by Stratasys and unpaid Taxes, whether or not disputed, its Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods to and including portions thereof through the dates date of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) . No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed against the Company Stratasys or any Subsidiaryof its Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending, except to the extent any such deficiency or request for waiver, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on Stratasys. There is no audit, proceeding or investigation now pending against or with respect to Stratasys or any of its Subsidiaries in respect of any Tax or Tax asset and neither Stratasys nor any of its Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset, except to the extent that any such pending or proposed audit, proceeding or investigation has not had and would not reasonably be expected to have a Material Adverse Effect on Stratasys.
4.16.3. There are no material Liens for Taxes (eother than for current Taxes not yet due and payable) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to on the payment and withholding assets of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages Stratasys or salaries any of employees, and neither the Company its Subsidiaries. Neither Stratasys nor any Subsidiary of its Subsidiaries is liable for bound by any Taxes for failure agreement with respect to comply with such Applicable LawsTaxes.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) 4.16.4. Neither the Company Stratasys nor any Subsidiary of its Subsidiaries has entered into or has been a member “material advisor” with respect to any transactions that are or would be part of an affiliated group of corporations within the meaning of Section 1504(a) any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or under any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationregulations thereunder.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Stratasys Inc)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the The Company and each Subsidiary have been of its Subsidiaries (i) has properly completed and timely filed (or had timely filed on its behalf) all material foreign, federal, state, local and municipal Tax Returns required to be filed by it, taking into account any extensions) and extensions of time within which to file such Tax Returns, all such Tax Returns are true, correct and complete in all material respects, and accurate all amounts shown as owing on such Tax Returns have been paid in full, and disclose (ii) has timely paid (or will timely pay) all material Taxes required to be paid by or it prior to the Closing Date, except with respect to matters contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP on the Company Financial Statements or, in the case of Taxes not yet due and each Subsidiary payable or that will not be due and payable by the Closing Date (but that are for periods ending on or prior to the periods covered therebyClosing Date), except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company has established an adequate accrual or any Subsidiary may be liable have been timely paid, except for Taxes reserve in accordance with GAAP in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyFinancial Statements.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to of its Subsidiaries has received any claim, dispute, audit, notification from any Tax Authority regarding any issues that (i) are currently pending Action or proceeding, nor is before any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against Tax Authority regarding the Company or any Subsidiary that has of its Subsidiaries, or (ii) have been raised by any Tax Authority and not been settled yet finally resolved.
(c) No Encumbrances with all amounts due having been paidrespect to material Taxes are currently in effect against any of the assets of the Company or any of its Subsidiaries other than Permitted Encumbrances.
(d) No lien federal, state, local or foreign audit, examination or contest or similar proceeding is presently pending with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect regard to any income, properties material Taxes or operations Tax Returns of the Company or its Subsidiaries and no such audit is threatened in writing.
(e) There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any Subsidiary has been proposed, asserted material Taxes or assessed deficiencies against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxesits Subsidiaries, and has withheld and paid over all amounts required no power of attorney granted by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor or any Subsidiary of its Subsidiaries with respect to any material Taxes is liable for any Taxes for failure to comply with such Applicable Lawscurrently in force.
(f) No claimNeither the Company nor any of its Subsidiaries has (i) been a member of an affiliated group (within the meaning of Section 1504 of the Code) or an affiliated, consolidated, combined, unitary, or notice aggregate group for state, local or foreign Tax purposes, other than the group of claimwhich the Company (or any of its Subsidiaries) is the common parent or (ii) any Liability for or in respect of the Taxes of, has ever been made or determined by an authority in a jurisdiction where reference to the Tax Liability of, another Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of state, local or foreign Tax Law), as a Subsidiary does not file Tax Returns that the Company transferee or such Subsidiary is successor, by Contract or may be subject to taxation by that jurisdictionotherwise.
(g) Neither the Company nor any Subsidiary has been of its Subsidiaries is a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income party to or bound by any Tax return (sharing, Tax indemnity, or any similar provision of non-U.S., state or local Law) Tax allocation agreement nor does the Company or any Subsidiary of the Company its Subsidiaries have any liability for Taxes of Liability or potential Liability to another party under any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationsuch agreement.
(h) Neither No written claim that has not been resolved has ever been made, and to the Knowledge of the Company, no other claim that has not been resolved has ever been made, in each case, against the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state its Subsidiaries by a Tax Authority in a jurisdiction where the Company or local Law)its Subsidiaries do not file Tax Returns that any one of them is or may be subject to Tax by that jurisdiction.
(i) The Company isand its Subsidiaries have withheld and paid to the proper Taxing Authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder, member or other third party.
(j) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying under Section 355 of the Code (i) in the two (2) years prior to the date hereof or (ii) in a distribution that 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 Merger.
(k) The Company is not a U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code and has at not been (and will not be) such a U.S. real property holding corporation during the five (5) year period ending on the Closing Date.
(l) Neither the Company nor any of its Subsidiaries has participated in, or is currently participating in, a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Regulations or similar provision of state, local or foreign Tax Law.
(m) Neither the Company nor any of its Subsidiaries has agreed or is required to include in income any adjustment under either Section 481(a) or Section 482 of the Code (or an analogous provision of state, local or foreign Tax Law) by reason of a change in accounting method or otherwise.
(n) The Company has made available to Parent or its legal or accounting representative copies of all times beenmaterial Tax Returns for the Company and each of its Subsidiaries filed for all periods including and after the period ended December 31, classified 2012.
(o) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a corporation for U.S. federal income tax purposesresult of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law), or any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Blyth Inc)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax Each Target Company has within the requisite time limits duly made all income and other declarations and statements with respect to Taxes (collectively, “material Tax Returns”) , given all notices, and supplied all other information required to have been filed by or with respect be supplied to the Company and each Subsidiary have been timely filed (taking into account any extensions) Tax Authority and all such information, Tax Returns and notices were when given or supplied and are complete and now accurate and disclose complete in all Taxes required material respects and made on a proper basis and are not the subject of, nor, to the Knowledge of the Company, are they likely to be paid by the subject of, any dispute or investigation with respect to any of the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyrelevant authorities concerned.
(b) Except where such unpaid Each Target Company has duly deducted, withheld, paid and accounted for all material Tax would due to have been deducted, withheld, paid or accounted for by it and is not have a Material Adverse Effectand has not at any time been liable to pay material interest or penalties in respect of Tax and, to the Knowledge of the Company, there are no unpaid Taxes claimed to circumstances in which interest or penalties in respect of material Tax could be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementscharged against a Target Company.
(c) There are no ongoing audits, examinations, or pending legal proceedings with respect to any material Taxes of any of the Target Companies, and there are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of any of the Target Companies.
(d) Each Target Company is in possession and control of all records and documentation that it is obliged to hold, preserve and return for the purposes of any Tax and of sufficient information to enable it to compute correctly its liability to Tax or its entitlement to claim any relief.
(e) Neither the execution, nor the performance of any obligations under this Agreement nor completion of this Agreement will result in any charge to Tax to arise on a Target Company nor or in any Subsidiary claw back of any relief previously given to a Target Company.
(f) Each UK Target Company is a registered and taxable person for the purposes of VAT and (i) has complied with all the requirements of the VAT legislation and all applicable regulations; (ii) is not in arrears with any payment or returns and is not liable to any abnormal or non-routine payment for VAT purposes; (iii) has maintained complete correct and up to date VAT records invoices and other necessary documents; (iv) has not been required by HMRC to give any security; and (v) is not and has never been or agreed to be an agent or VAT representative for the purposes of section 47 or 48 of the Value Added Tax Act 1994. Each UK Target Company is a member of a group of companies for VAT purposes full details of which are set out in the Disclosure Letter.
(g) No Target Company is liable to account for or to pay an amount in respect of VAT chargeable as a result of the exercise of an option to tax under Schedule 10 paragraph 2 to the Value Added Tax Act 1994.
(h) No Target Company is liable for the Taxes, contingent or otherwise, of any other Person (other than the Target Companies) (i) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law, or (ii) which at any time has been a member of the same group or consortium as the relevant Target Company or an associated company of the relevant Target Company for Tax purposes or in respect of any transaction effected with or asset or benefit received from or given by the relevant Target Company to any such other company.
(i) Since the Most Recent Accounts Date, no Target Company has ceased to be a member of a group of companies or undergone a change of control.
(j) None of the Target Companies is a party to any claim, dispute, audit, pending Action Tax indemnification or proceeding, nor is Tax sharing or similar agreement (other than any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or any Subsidiary that has Contracts entered into in the ordinary course of business) not been settled with all amounts due having been paidprimarily related to Taxes).
(dk) No lien with respect To the Knowledge of the Company, none of the Target Companies will be required to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for include any Taxes with respect to any material amount in taxable income, properties exclude any material item of deduction or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid loss from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claimtaxable income, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor make any Subsidiary has been a member of an affiliated group of corporations within the meaning of adjustment under Section 1504(a) 481 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., U.S. state or U.S. local Law) nor does for any taxable period (or portion thereof) ending after the Company Share Exchange Closing Date as a result of any (i) (A) excess loss account or any Subsidiary deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Code (or any similar provision of non-U.S., U.S. state or U.S. local Law), (B) instalment sale or otherwise(C) open transaction disposition, in each case as a result of actions taken prior to the Share Exchange Closing (other than actions taken in the consolidated group ordinary course of which business or recorded on the Company is currently accounts of the parent corporation.
relevant Target Company), (hii) Neither prepaid amount received or deferred revenue recognized prior to the Company nor Share Exchange Closing (other than amounts incurred in the ordinary course of business or recorded on the accounts of the relevant Target Company), (iii) change in method of accounting for a taxable period ending on or prior to the Share Exchange Closing Date (and the IRS has not proposed any Subsidiary has engaged such adjustment or change in any transaction that could give rise to a disclosure obligation as a accounting method) (iv) “reportable transactionclosing agreements” under described in Section 6011 7121 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., U.S. state or U.S. local Law) executed prior to the Share Exchange Closing.
(l) Neither Benevolent Technology, Inc. nor ▇▇▇▇▇▇.▇▇, LLC has deferred the employer’s share of any “applicable employment taxes” under Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the “CARES Act”), failed to properly comply in all material respects with and duly account for all credits received under Sections 7001 through 7005 of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, or sought, or intends to seek, a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. § 636(a)).
(im) Benevolent Technology, Inc. has not been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(n) Benevolent Technology, Inc. has not participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(o) No Target Company has entered into, or been party to any scheme or arrangement designed partly or wholly for the purposes of avoiding or deferring Tax or which has been disclosed to a Tax Authority.
(p) The Company is not aware of any person acting in the capacity of a person associated with (as defined in section 44 of the Criminal Finances Act 2017) any Target Company having committed a UK or foreign tax evasion facilitation offence (as defined in sections 45 and 46 respectively of the Criminal Finances Act 2017).
(q) All of the documents relating to or necessary to prove the title of each Target Company to its assets or bring any cause of action in any court or tribunal (including, without limitation, its intellectual property) have been properly stamped.
(r) Each Target Company is and has only ever been Tax resident in its jurisdiction of incorporation and is and has not been either (i) resident or (ii) subject to Tax through a permanent or other business establishment or fixed place of business. Within the two (2) year period ending on the date hereof, no Target Company has been notified in writing by any Governmental Authority that it is or may be required to file a Tax Return or pay any Taxes in any jurisdiction in which the Target Company does not file such Tax Returns or pay such Taxes, which notice has not been resolved.
(s) Save to the extent fairly disclosed, none of each Target Company’s directors, officers, employees or former or proposed directors, officers or employees of each Target Company have received any securities, interests in securities or securities options as defined in Part 7 of Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”).
(t) All of each Target Company’s directors, officers or employees or former or proposed directors, officers or employees of each Target Company who have received any securities or interests in securities falling with Chapter 2 of Part 7 of ITEPA have entered into elections jointly with the relevant Target Company under section 431 of ITEPA and a list of any such directors, officers or employees and the elections entered into is set out in paragraph 6.24(t) of the Company Disclosure Letter.
(u) Each Target Company has deducted Tax as required by law from all payments to or treated as made to or benefits provided for the relevant Target Company’s directors, officers or employees or former or proposed directors, officers or employees of each Target Company and persons rendering services to the relevant Target Company and has within the appropriate time limits accounted to the relevant Tax Authority for all such Tax deducted and has paid to the relevant Tax Authority all Tax and contributions payable in respect of such payments or benefits (including, for the avoidance of doubt, securities, interests in securities or securities options as defined in Part 7 of ITEPA).
(v) No Target Company is, and nor has at all times it been, classified party to any transaction or arrangement under which it has been required to compute its profits or losses for tax purposes as if arm’s length terms had been made or imposed instead of the actual terms, or otherwise to make any adjustment for tax purposes to the terms on which the transaction or arrangement took place.
(w) The Company is treated as a corporation for U.S. United States federal income tax purposes, and the Company has not made an entity classification election to be treated as other than a corporation for United States federal income tax purposes other than as contemplated in Clause 2.3.
(x) Benevolent Technology Inc. is treated as a corporation for United States federal income tax purposes.
(y) ▇▇▇▇▇▇.▇▇, LLC is and has been treated since its formation as an entity disregarded as separate from its owner for United States federal income tax purposes.
(z) BenevolentAI Technology Limited has been treated as a corporation for United States federal income tax purposes since its formation on 1 October 2015, and has not made an entity classification election to be treated as other than a corporation for United States federal income tax purposes.
(aa) The provisions for Taxes in the Accounts are sufficient for the payment of all accrued and unpaid applicable Taxes of each Target Company, whether or not assessed or disputed as of the date of the Accounts.
(bb) None of the Target Companies has taken or agreed to take any action not contemplated by this Agreement that would reasonably be expected to prevent or impede the Share Exchange together with the election contemplated under Clause 2.3 from qualifying for the Intended US Tax Treatment. None of the Target Companies as of the date hereof has any knowledge of any facts or circumstances that would reasonably be expected to prevent or impede the Share Exchange together with the election contemplated under Clause 2.3 from qualifying for the Intended US Tax Treatment.
Appears in 1 contract
Sources: Business Combination Agreement
Tax. Except as otherwise disclosed to Buyer on Schedule 4.18: (ai) All Tax returns, Tax reports, information returns, declarations of estimated Tax the Company has duly and other declarations and statements timely filed with respect to Taxes (collectively, “Tax Returns”) the appropriate Governmental Authority all material tax returns required to have been filed by or with respect to the Company and each Subsidiary have been timely be filed (taking into account any valid extensions) and all by it; (ii) such Tax Returns tax returns are true, complete and accurate correct in all material respects and disclose accurately reflect all Taxes required to be paid by or with respect to liability for taxes of the Company and each Subsidiary for the periods covered thereby, except for Tax Returns ; (iii) the failure Company is not currently the beneficiary of any extension of time within which to file would not have a Material Adverse Effect. All Taxes any tax return; (iv) all material taxes due and owing by the Company (whether or not shown on any Tax Returntax return) have been paid within the time required by Applicable Law, and adequate reserves have been established on the Company’s financial statements in accordance with GAAP for which any taxes that are not yet due and payable, for all taxable periods, or portions thereof; (iv) the Company has not waived any statute of limitations affecting any liability for taxes or agreed to any Subsidiary extension of time during which a tax assessment or deficiency assessment may be liable have been timely paid, except for Taxes made or extending the failure of time within which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
file any tax return; (bv) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for granted any Taxes power of attorney with respect to any incometaxes that is currently in force; (vi) there are no currently ongoing or pending audits, properties suits, claims, investigations, examinations, litigations or operations other proceedings by any Governmental Authority with respect to any taxes of the Company, and the Company has not received notice of the commencement of any audit, suit, claim investigation, examination, litigation or other proceeding concerning any taxes of the Company; (vii) the Company has not been subject to tax in a jurisdiction in which it does not currently file tax returns or pay taxes and no claim has been made since inception of the Company or by any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority Governmental Authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns tax returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
; (gviii) Neither all deficiencies for material taxes asserted or assessed against the Company nor any Subsidiary has have been a member of an affiliated group of corporations within the meaning of Section 1504(afully and timely paid or settled; (ix) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company is not negotiating any final or draft assessment or reassessment in respect of taxes with any Subsidiary of Governmental Authority; (x) the Company is not a party to any tax sharing, indemnity or similar agreement, and does not have any liability for Taxes the taxes of any other Person under Treasury Regulations § 1.1502-6 (as a transferee or any similar provision of non-U.S.successor, state or local Law) by contract or otherwise; (xi) the Company has not received any refund of taxes to which it is not entitled; (xii) the Company is not subject to any joint venture, partnership or other than the consolidated group of arrangement or contract that is treated as a partnership for income tax purposes in any jurisdiction; (xiii) all material taxes which the Company is currently obligated to withhold, collect or remit in respect of amounts allocable, credited, paid or owing (including any amount deemed to have been credited or paid) to any employee, independent contractor, director, officer, creditor, partner or other Person have been duly withheld or collected and have been timely remitted or paid over to the parent corporation.
proper Governmental Authority or other Person (hor set aside for payment when due); (xiv) Neither there are no liens for taxes upon the assets or properties of the Company; (xv) the Company nor any Subsidiary has engaged not participated in any transaction that could give rise to a disclosure obligation as a “reportable listed transaction,” under Section 6011 of as defined in Treasury Regulation §1.6011-4(b)(2); and (xvi) the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has been at all times beensince its formation, classified as either a corporation partnership or an entity disregarded as separate from its owner for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Shell Midstream Partners, L.P.)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect If the Buyer has a legal responsibility to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect directly pay to the Company and each Subsidiary have been timely filed (taking into account appropriate taxing authority any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect included in the payment due to the Company and each Subsidiary for Supplier, the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to Buyer shall pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien under the Agreement in full without any set-off, counterclaim, deduction or withholding except where required by law, in such cases, the sums payable to the Supplier shall be increased as necessary so that after making all required deductions and withholdings the Supplier receives an amount equal to the sum they would have received had no such deductions of withholding taxes were required. Where a claim can be made to subsequently recover said deductions or withholdings the Supplier shall arrange reimbursement with respect the Buyer. The Supplier may avoid withholding of certain Taxes by providing written documentation to the Buyer prior to payment indicating that the Supplier is lawfully exempt from or otherwise not subject to such Taxes has been filed and no deficiency or addition to Taxes, interest or penalties being deducted from payment. The Supplier shall be solely responsible for any Taxes with respect to administration as required by any incomeand all competent authorities, properties or operations including, but not limited to, payroll, pension arrangements, Tax, social security contributions and other mandatory dues and related matters which may arise as a consequence of the Company or Agreement and the Supplier undertakes to fully inform itself prior to the date of the commencement of any Subsidiary has been proposed, asserted or assessed against Services of the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects requirements for due compliance with all Applicable Laws relating to the payment Tax and/or social security obligations and withholding of Taxesall costs, including sales third party consultancy and use Taxesadvisory costs, and has withheld and paid over all amounts required by Applicable Laws related to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has compliance shall at all times beenremain for the account of the Supplier. The Supplier warrants to the Buyer that it will comply with all obligations for full and timely compliance as required by the relevant competent authorities, classified including, but not limited to, information, documentation, certification, registration, reporting, withholding and payment of any and all Taxes, of whatever name and nature, including, but not limited to, any withholding from remuneration derived from the Agreement; social security contribution; corporate taxation; income tax and any other contribution and/or premiums for unemployment or medical insurance and/or workers compensation in accordance with all applicable laws, rules and regulations. The parties shall comply with any applicable laws relating to import, VAT, goods and services tax and customs duties. Without prejudice to any other Clause of the Agreement, the Supplier shall indemnify and hold harmless the Buyer Group against all Claims and in respect of all loss suffered by them as a corporation for U.S. federal income tax purposesresult of or relating to violations of this Clause. For the avoidance of doubt, ▇▇▇▇▇▇ 14 shall not apply in respect of a party’s rights of indemnity under this Clause.
Appears in 1 contract
Sources: Terms and Conditions for the Sale of Goods and Services
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes The Company: (collectively, “Tax Returns”i) required to have been filed by or with respect to the Company and each Subsidiary have been timely has filed (taking into account any extensionsextension of time within which to file) all material Tax Returns required to be filed by it, and all such filed Tax Returns are complete and accurate and disclose in all Taxes required to be material respects; (ii) has timely paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All all material Taxes (whether or not shown as due) on such filed Tax Returns and any other material Taxes that the Company is otherwise obligated to pay (taking into account any extension of time to pay such Taxes); (iii) with respect to all material Tax ReturnReturns filed by it, has not waived any statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency; and (iv) does not have any deficiency, audit, examination, investigation or other proceeding in respect of material Taxes or Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for assessments remains open. All material Taxes of the Company which are not yet due and payable have been (A) for which periods covered by the Company or any Subsidiary may be liable have been timely paidFinancial Statements, except for Taxes adequately accrued and reserved on the failure of which to pay would not have a Material Adverse Effect. The Company Financial Statements in accordance with IFRS and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes (B) for periods subsequent to not covered by the periods to which such Tax Returns applyCompany Financial Statements, accrued on the books and records of the Company, in each case as of the date of this Agreement.
(b) Except where such unpaid Tax would The Company is not a party to, is not bound by and does not have a Material Adverse Effectany obligation under any Tax sharing agreement, there are no unpaid Taxes claimed to be due by Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the Taxing authority sharing or ceding of any jurisdictioncredits or losses), and the officers does not have any potential liability or obligation to any Person as a result of the Company and each Subsidiary know of no basis for or pursuant to any such claim. The provisions for Taxes payableagreement, if anycontract, shown on arrangement or commitment other than an agreement, contract, arrangement or commitment entered into in the financial statements filed with Ordinary Course the SEC Documents are sufficient for all accrued and unpaid primary purpose of which does not relate to Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither The Company has withheld and paid to the Company nor any Subsidiary is a party appropriate taxing authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any claimcurrent or former employee, disputeindependent contractor, auditcreditor, pending Action shareholder or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes other person and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws applicable Laws, rules and regulations relating to the payment withholding and withholding remittance and related reporting requirements with respect to such Taxes.
(d) The Company has not been a member of Taxesan affiliated, including sales and use Taxesconsolidated, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages combined or salaries unitary group for U.S. federal, state, local or non-U.S. Tax purposes.
(e) The Company does not have a request for a material ruling in respect of employees, and neither the Company nor Taxes pending with any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawstaxing authority.
(f) No claim, There are no material Tax liens upon any assets of the Company except for Permitted Liens.
(g) None of the shares in the Company are “taxable Canadian property” within the meaning of the Tax Act to any shareholder of the Company.
(h) The Company has not: (i) received written notice from a non-Canadian or non-U.S. taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized or (ii) received written notice of claim, has ever been made by an authority in from a jurisdiction where the Company or a Subsidiary it does not file Tax Returns that the Company or such Subsidiary it is or may be subject to taxation by Tax in that jurisdiction.
(g) Neither the . The Company nor is not subject to Tax in any Subsidiary has been country other than its country of incorporation, organization or formation or by virtue of having employees, a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwisepermanent establishment, other than the consolidated group place of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged business or similar presence in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)country.
(i) The Company ishas not participated in a “reportable transaction” within the meaning of either subsection 237.3(1) of the Tax Act or a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2) (or any corresponding or similar provision of state, and local or non-U.S. Law), or a “notifiable transaction” within the meaning of subsection 237.4(1) of the Tax Act.
(j) None of Sections 80 to 80.04, both inclusive, of the Tax Act have applied or will apply to the Company. The Company has at all times beenno material unpaid amounts that may be required to be included in income under Section 78 of the Tax Act.
(k) The Company has not acquired property from any Person in circumstances where the Company did or could have become liable for any Taxes payable by such Person pursuant to Section 160 of the Tax Act.
(l) The Company has not made any payments or delivered services or sold, classified transferred or otherwise assigned goods to any Person in circumstances where the provisions of Section 247 of the Tax Act, Section 482 of the Code, or any similar provision of any other similar Law applied.
(m) The Company is a “taxable Canadian corporation” as a corporation such term is defined in the Tax Act.
(n) The Company has not taken or agreed to take any action, nor does it intend to or plan to take any action, or have any Knowledge of any fact or circumstance, that could reasonably be expected to prevent the Transactions from qualifying for U.S. federal income tax purposesthe Intended Tax Treatment; provided, that the foregoing representation will not prevent the Company from taking any actions required by this Agreement or any Ancillary Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. III)
Tax. 17.1 All proper returns that may have become due by the Company from time to time under any law administered by the Commissioner for the South African Revenue Service or an equivalent revenue authority in any foreign jurisdiction (aRevenue Authority) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed duly made and, to the best of the Seller’s knowledge and belief, will not be the subject of any dispute with any Revenue Authority.
17.2 To the Seller’s knowledge, the Company is not in breach of any laws relating to Tax.
17.3 The Company is not engaged in or a party to any appeal against the disallowance by a Revenue Authority of any objection lodged by the Company.
17.4 No Revenue Authority has agreed to operate any concessionary treatment in relation to the computation of tax liabilities or with respect the submission of tax returns which is relevant to the Company and each Subsidiary which is required to continue operation of the Company in the same way as it was carried on immediately prior to the date of this Agreement.
17.5 All notices and other communications with a Revenue Authority requiring or permitting the Company to deal with its tax affairs in a particular manner or on a particular basis have been timely filed (taking into account Disclosed.
17.6 There is no dispute with any extensions) Revenue Authority concerning any matter which could affect the Company in any way and all such Tax Returns are complete and accurate and disclose all Taxes required to be no Revenue Authority has notified the Company or the Seller that it has conducted any investigation, inquiry or audit nor has it paid by or with respect a non-routine visit to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which or indicated to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be the Seller that it intends to conduct an investigation or audit of the tax affairs of Company.
17.7 The Company is not liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to any penalty, fine, interest or similar amount in connection with tax which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been duly paid, or fully provided for in the Accounts.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) 17.8 The Company and each Subsidiary has complied in duly paid, or fully provided for, all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary Taxes for which it is liable for any Taxes for failure to comply in accordance with such Applicable Lawsthe Accounts.
17.9 The Company has deducted and withheld all Tax (fincluding employer tax) No claim, which it has been obliged to deduct or notice of claimwithhold from amounts paid by it, has ever been made properly accounted to all relevant Revenue Authority for all amounts so deducted or withheld and has otherwise complied with its legal obligations in respect of such deduction or withholding.
17.10 The Company has maintained all records in relation to Tax which it is required to maintain, on a proper basis and as is required by section 29 of the Tax Administration Act, No. 28 of 2011.
17.11 The Company has not provided an authority in indemnity for Tax to a jurisdiction where third party, nor has the Company or a Subsidiary does not file agreed to pay any third party gross up payments for any Tax Returns for which that the Company or such Subsidiary is or third party may be subject to taxation by that jurisdictionliable.
(g) Neither the 17.12 The Company nor any Subsidiary has been is duly registered as a member of an affiliated group of corporations within the meaning of Section 1504(a) VAT vendor in terms of the Code filing a combined federal income Tax return (VAT Act and complied with all statutory provisions and regulations relating to VAT and has duly paid or any similar provision provided for all amounts of non-U.S., state VAT which have become due and payable or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationliable.
(h) Neither 17.13 The Company is effectively managed and tax resident in South Africa and does not have a permanent establishment or tax presence outside of South Africa. Share Purchase Agreement | UKG/113113564.1 DLA Piper | 27
17.14 All transactions between the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of and foreign connected persons are and have been concluded on an arm’s length basis for transfer pricing purposes and all exchange control approvals, where required, have been obtained by the Code Company and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)have duly been complied with.
(i) 17.15 The Company is, and or has at all times never been, classified as a corporation for U.S. federal income tax purposesparty to, or engaged in any transaction, operation, scheme, agreement or arrangement of the nature contemplated in section 103(2) or section 80A to 80L of the Income Tax Act or section 73 of the VAT Act.
Appears in 1 contract
Tax. (a) All Sellers have complied with all Tax returnslaws in all jurisdictions in which each is or has been subject to taxation of any nature whatsoever and each has timely filed, Tax reportsor caused to be filed, information returnsall federal, declarations state, local and foreign tax returns of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) any nature whatsoever which are required to have been be filed by it and has paid or with respect caused to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose be paid all Taxes required to be paid by it; all such tax returns and reports are true, accurate and complete; there are no Taxes being contested by a Seller; there are no unpaid penalties or with respect interest relating to Tax deficiencies of any nature whatsoever owed by a Seller; there is no taxable income required to be reported by a Seller in any Tax period ending after the Company Closing Date, which income is attributable to a change in accounting methods which required or permitted the deferral of gross or net income to a later Tax period; there are, and each Subsidiary will hereafter be, no Tax deficiencies payable by a Seller of any kind for any Tax periods (or portion thereof) ending on or before the periods covered thereby, except for Tax Returns Closing Date; neither Seller has granted any extension of the failure statute of limitations relating to any tax matters of such Seller and is not the beneficiary of any extension of time within which to file would any tax return; all Taxes and other assessments or levies which a Seller is required by law to withhold or to collect have been duly withheld and collected, and have been paid on a timely basis to the proper governmental authorities or, if not have yet due, are held by such Seller in a Material Adverse Effect. All separate bank account or otherwise segregated on the books of such Seller for payment; and each Seller has made adequate provision for payment of Taxes (whether or not shown on of any Tax Return) nature whatsoever payable by such Seller for any current period for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would returns are not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyyet due.
(b) Except where There are no federal, state, local or foreign Tax liens, encumbrances, charges or other security interests in or upon any property or assets of a Seller, whether for income, payroll, sales, or Taxes of any other kind; neither has received notice that it is delinquent in the payment of any Tax or estimated Tax payments, and neither Seller has requested any extension of time within which to file any tax return which has not since been filed. Schedule 5.29 lists the periods through which such unpaid Seller's tax returns have been examined or audited by the Internal Revenue Service or other appropriate taxing authorities. Each Seller has heretofore furnished Purchaser with true and complete copies of (i) all audit reports received from any taxing authority within the last five (5) years, (ii) all federal income tax returns of such Seller for all fiscal years ending on or after June 30, 1997, and (iii) all other tax returns filed with respect to Seller for all fiscal years ending on or after June 30, 1997. No notices respecting asserted or assessed deficiencies for any Tax have been received by either Seller. Neither Seller is required to file tax returns in any foreign, state or local jurisdiction for any tax period except in those foreign, state and local jurisdictions in which it has filed. Each Seller has paid or accrued on its Balance Sheet (i) all Taxes (including interest, penalties or additions) for all Taxable periods ended on or prior to March 31, 2000 , and (ii) all ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇t, penalties or additions) properly apportionable to any day through March 31, 2000 (apportioned as if March 31, 2000 were the end of the Taxable year or period) for all taxable years or periods including, but not ending on, March 31, 2000. No investigation, examination or audit by any Tax agency or authority is presently pending or, to the Knowledge of Sellers, threatened, and neither Seller is a party to any action or proceeding by any governmental authority for the assessment or collection of Taxes, nor has any such event been asserted or, to the Knowledge of Sellers, threatened. Neither Seller has filed any consent of the type described under Section 341(f) of the Code or made any election or deemed election pursuant to Section 338 of the Code. Neither Seller has made any payments, is obligated to make any payments or is a party to any agreement that could obligate it to make any payments that would not have a Material Adverse Effectbe deductible under Code Section 280G. For purposes of this Agreement, there are no unpaid Taxes claimed "tax returns" means all reports, returns, declarations, statements or other information required to be due by the Taxing supplied to a taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed in connection with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether including any schedule or not disputed, attachment thereto and for all periods to and including the dates of such financial statementsany amendment thereof.
(c) Neither the Company nor any Subsidiary Seller is a party to any claim, dispute, audit, pending Action Tax allocation or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes sharing agreement. Neither Seller has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for the Taxes of any other Person entity or person, as a transferee or successor, under Treasury Regulations § 1.1502-6 (applicable federal, state, local or any similar provision of non-U.S.foreign law, state or local Law) by contract or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. For purposes of this Section, the term “Seller” shall be construed to refer also to each predecessor-in-interest of Seller and each other Person for whose liability for Taxes Seller has Liability. Except as set forth on Schedule 6.17:
(a) All Seller has filed or caused to be filed on a timely basis all Tax returns, Tax reports, information returns, declarations of estimated Tax Returns and other declarations and statements all reports with respect to Taxes (collectively, “Tax Returns”) that are or were required to have been be filed pursuant to Applicable Requirements by Seller or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Business, Acquired Assets, or the income or operations of Seller. All Tax Returns are complete and accurate and disclose all Taxes required to be paid by or reports with respect to Taxes filed by Seller are true, correct and complete in all material respects. Seller has timely paid, or made provision in the Company Interim Balance Sheet for all Taxes related to the Acquired Assets, Business, or the income and each Subsidiary operations of Seller that have accrued or become due for the all periods covered therebyby the Tax Returns, except for Tax Returns the failure of which or pursuant to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paidassessment received by Seller, except for Taxes not yet due and payable and such Taxes, if any, as are listed in Schedule 6.17(a) and are being contested in good faith and as to which adequate reserves (determined in accordance with GAAP) have been provided in the failure Interim Balance Sheet. Seller currently is not the beneficiary of any extension of time within which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent file any Tax Return related to the periods to which such Tax Returns applyBusiness or Acquired Assets.
(b) Except where such unpaid Seller has delivered or made available to Buyer copies of all Tax would not have a Material Adverse EffectReturns related to the Business or Acquired Assets filed since January 1, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction2006. Schedule 6.17(b) sets forth each state, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payablecounty, if anylocal municipal, shown on the financial statements filed domestic or foreign jurisdiction or Governmental Authority in or with the SEC Documents are sufficient for all accrued and unpaid Taxeswhich, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes the Business or Acquired Assets, Seller (i) files, or is or has been filed and no deficiency or addition required to Taxesfile since January 1, interest or penalties 2006, a Tax Return, (ii) is required to register for any Taxes with respect to any incomeTax purpose, properties (iii) is or operations of the Company or any Subsidiary has been proposedsince January 1, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is 2006 liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as on a “reportable transactionnexus” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.basis,
Appears in 1 contract
Tax. Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Governmental Authority by or with respect to the Company and each Subsidiary on behalf of Parent or any of its Subsidiaries have been timely filed when due (taking into account any extensionsextension of time within which to file); (ii) and all such Tax Returns are true, accurate and complete and accurate and disclose have been prepared in compliance with all applicable Laws; (iii) all Taxes due and payable by Parent or any of its Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid by or with respect to the Company and each Subsidiary for the periods covered therebyowing to, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on received or owing from, any Tax Returnemployee, creditor, independent contractor or other Third Party) for which the Company or any Subsidiary may be liable have been timely paidpaid (or collected or withheld and remitted) to the appropriate Governmental Authority, except for Taxes or Tax matters being contested in good faith and for which adequate reserves have been established in accordance with GAAP in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent Parent SEC Documents filed prior to the periods to which such Tax Returns apply.
date of this Agreement; (biv) Except where such unpaid Tax would not have a Material Adverse Effectsince January 1, there are 2018, no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no written claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Authority in a jurisdiction where the Company Parent or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return of a particular type that the Company Parent or such Subsidiary any of its Subsidiaries is or may be subject to taxation by Tax, or required to file Tax Returns, of such type in that jurisdiction., other than any such claims that have been fully resolved; and (v) there are no Encumbrances on any of the assets of Parent or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(gb) Neither each of Parent and its Subsidiaries has complied with all applicable Laws relating to the Company withholding of Taxes and has, within the time and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(c) no outstanding written claim has been received by, and no audit, action, or proceeding is in progress or threatened in writing, against or with respect to Parent or any of its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) neither Parent nor any Subsidiary of its Subsidiaries (i) has been a member any Liability for the Taxes of an affiliated group any Person (other than Parent or any of corporations within the meaning of its Subsidiaries) under Section 1504(a) 1.1502-6 of the Code filing a combined federal income Tax return Treasury Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) nor does the Company is a party to any Tax sharing, allocation or indemnification agreement or arrangement (other than (w) any agreement or arrangement solely among Parent or any Subsidiary of its Subsidiaries, (x) commercial agreements or arrangements entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes, (y) the Parent Tax Sharing Agreement or (z) the Tax Sharing Agreement Joinder), (iii) has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Code (or any similar provision of non-U.S.state, state local or local Lawforeign law) or otherwise(iv) is, or since November 5, 2014 has been, a member of any affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other than a group the consolidated group common parent of which the Company is currently the parent corporation.Parent or any of its Subsidiaries);
(he) Neither the Company no waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries;
(f) neither Parent nor any Subsidiary of its Subsidiaries has engaged participated in any transaction that could give rise to a disclosure obligation as a “reportable listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations; and
(g) during the five-year period ending on the date of this Agreement, neither Parent nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 6011 355(a) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Code.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Gci Liberty, Inc.)
Tax. (a) All Until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement, the Company and its Subsidiaries shall prepare and file on or before the due date thereof all Tax returnsReturns required to be filed by any of the Company and its Subsidiaries (except for any Tax Return for which an extension has been granted as permitted hereunder) on or before the Closing Date, and shall pay all Taxes (including estimated Taxes) due on such Tax reports, information returns, declarations of estimated Tax and other declarations and statements Return (or due with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns for which an extension has been granted as permitted hereunder) or which are complete and accurate and disclose all Taxes otherwise required to be paid by at any time prior to or during such period. Such Tax Returns shall be prepared in accordance with respect the most recent Tax practices as to the Company elections and each Subsidiary for the periods covered thereby, accounting methods except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary new elections that may be liable have been timely paidmade therein that were not previously available, except for Taxes the failure of which subject to pay would Parent's consent (not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applybe unreasonably withheld or delayed).
(b) Except where such unpaid Tax would not have a Material Adverse EffectUntil the earlier of (i) the Closing Date, there are no unpaid Taxes claimed or (ii) the termination of this Agreement, to be due by the Taxing authority of extent any jurisdiction, and the officers of the Company and each Subsidiary know its Subsidiaries has knowledge of no basis the commencement or scheduling of any Tax audit, the assessment of any Tax, the issuance of any notice of Tax due or any bill for collection of any Tax due or the commencement or schedulin▇ ▇f any other administrative or judicial proceeding with respect to the determination, assessment or collection of any Tax of the Company or its Subsidiaries, the Company shall provide prompt notice to Parent of such claim. The provisions for Taxes payablematter, if any, shown on setting forth information (to the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to extent known) describing any asserted Tax liability in reasonable detail and including copies of any notice or other documentation received from the dates of applicable Tax authority with respect to such financial statementsmatter.
(c) Neither Until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement, none of the Company nor or its Subsidiaries shall take any Subsidiary is a party to of the following actions without the Parent's consent: (i) make, revoke or amend any claim, dispute, audit, pending Action or proceeding, nor is Tax election; (ii) execute any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the waiver of restrictions on assessment or collection of any Taxes and no claim for the assessment Tax; or collection of (iii) enter into or amend any Taxes has been asserted against the Company agreement or settlement with any Subsidiary that has not been settled with all amounts due having been paidTax authority.
(d) No lien All tax-sharing agreements or similar arrangements with respect to Taxes or involving the Company or its Subsidiaries pursuant to which any of them has been filed and no deficiency or addition a current obligation to Taxesmake a payment under such an agreement shall be terminated prior to the Closing Date, interest or penalties for any Taxes with respect to any incomeand, properties or operations after the Closing Date, none of the Company or its Subsidiaries shall be bound thereby or have any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiaryliability thereunder for amounts due in respect of such agreements and arrangements.
(e) The Company and each Subsidiary has complied its Subsidiaries shall retain copies of all Tax Returns, schedules, workpapers, records and other documents in all material respects with all Applicable Laws its possession relating to Tax matters for periods or portions thereof before the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from Closing Date until 60 days after the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) expiration of the Code filing a combined federal income applicable statute of limitations with respect to such Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationmatters.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax income and other declarations and statements material Tax Returns required by Law to be filed with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the each Purchased Company and each Purchased Subsidiary have been timely filed (taking into account any applicable extensions) ), and all such Tax Returns are true, correct and complete in all material respects.
(b) All income and accurate and disclose all other material Taxes required by Law to be paid by or with respect to the each Purchased Company and each Purchased Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither Except for Permitted Liens, there are no Liens for Taxes upon any of the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action property or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection assets of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Purchased Company or any Subsidiary that has not been settled with all amounts due having been paidthe Purchased Subsidiary.
(d) No lien with respect to Taxes has been filed The Purchased Companies and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Purchased Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has have complied in all material respects with applicable Law with respect to Tax withholding and all Applicable Laws relating information reporting and backup withholding requirements, including the maintenance of required records with respect thereto.
(e) No audits, proceedings or other examinations of any Tax Return of any Purchased Company or the Purchased Subsidiary are in progress, pending or, to the payment and withholding Knowledge of TaxesSellers, including sales and use Taxesthreatened in writing. No deficiencies for Taxes of any Purchased Company or the Purchased Subsidiary have been claimed, and has withheld and paid over all amounts required proposed or assessed by Applicable Laws to be withheld and paid from the wages any Governmental Authority, except for deficiencies that have been paid, settled or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsotherwise resolved.
(f) No claim, None of the Purchased Companies or notice of claim, the Purchased Subsidiary has ever been made by an authority received a written claim to pay Taxes or file Tax Returns from a Governmental Authority in a jurisdiction where the such Purchased Company or a such Purchased Subsidiary does has not file filed Tax Returns that has not been resolved. None of the Company Purchased Companies or such the Purchased Subsidiary has (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of any Taxes, which waiver or extension is still in effect, or may be subject to taxation by that jurisdiction(ii) executed or filed any power of attorney with any taxing authority, which is still in effect.
(g) Neither None of the Company nor any Purchased Companies or the Purchased Subsidiary is or has ever been a member of an affiliated group of corporations within with which it has filed (or been required to file) consolidated, combined, unitary or similar Tax Returns, other than the meaning of Section 1504(a) Parent Group. None of the Code filing a combined federal income Tax return Purchased Companies or the Purchased Subsidiary (or any similar provision of non-U.S., state or local Lawi) nor does the Company or any Subsidiary of the Company have has any liability for Taxes the Tax of any Person (other Person than the Purchased Companies and the Purchased Subsidiary, or the Parent Group) under Treasury Regulations § Regulation Section 1.1502-6 (or any comparable or similar provision of non-U.S.federal, state state, local or local foreign Law) ), as a transferee or otherwisesuccessor, pursuant to any contractual obligation, or otherwise pursuant to applicable Law, in each case, other than the consolidated group of which the Company pursuant to customary commercial Contracts not primarily related to Taxes, or (ii) is currently the parent corporationa party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Contract, other than any customary commercial Contracts not primarily related to Taxes.
(h) Neither No Purchased Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Company nor Closing Date as a result of (i) any adjustments under Section 481 of the Code (or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax Law) made or requested prior to the Closing, (ii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed prior to the Closing, or (iii) installment sale or open transaction disposition made prior to the Closing.
(i) None of the Purchased Companies or the Purchased Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the prior two (2) years.
(j) None of the Purchased Companies or the Purchased Subsidiary (i) is a party to any joint venture, partnership, or other arrangement that is treated as a partnership for federal income Tax purposes or (ii) has made an entity classification (“check-the-box”) election under Section 7701 of the Code.
(k) Each of the Purchased Companies is, and at all times since its formation has been, treated as an entity disregarded as separate from its owner for U.S. federal income Tax purposes under Treasury Regulations Section 301.7701-3. The Purchased Subsidiary is, and at all times since its formation has been, treated as a C corporation for U.S. federal income Tax purposes.
(l) None of the Purchased Companies or the Purchased Subsidiary has engaged in a trade or business, had a permanent establishment or otherwise become resident for Tax purposes outside the United States.
(m) None of the Purchased Companies or the Purchased Subsidiary has been a party to any transaction that could give rise to a disclosure obligation as a “reportable listed transaction” under within the meaning of Section 6011 6707A of the Code and Treasury Regulations promulgated thereunder Section 1.6011-4(b)(2) (or any similar provision of corresponding or comparable state, local or non-U.S., state or local U.S. Tax Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Equity Purchase Agreement (Casella Waste Systems Inc)
Tax. (a) All Tax returns, Tax reports, information returns, declarations In respect of estimated Tax and other declarations and statements with respect to Taxes the Company (collectively, each of the following representations and warranties shall be considered as the “Tax ReturnsWarranties”) required ):
9.1. adequate provision or reserve has been made in the Audited Accounts for all Tax liabilities to be assessed or for which it is accountable under applicable Law.
9.2. all Tax returns have been filed by or and they have provided information required for the Tax purposes in accordance with respect to the Company applicable Laws. Such filed returns are true and each Subsidiary accurate in all respects and have been timely filed (taking into account any extensions) and completed in accordance with Applicable Law in all such Tax Returns are complete and accurate and disclose material respects. The Company has paid all Taxes required to be paid by or with respect to the Company due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes payable (whether or not shown on any tax returns).
9.3. There is no Tax Return) for which deficiency outstanding or assessed or proposed against the Company, nor has the Company or any Subsidiary may be liable have been timely paid, except for Taxes extended the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, period for the assessment or collection of any Taxes and no claim for the assessment Tax. No audit or collection other examination of any Taxes tax return of the Company by any Tax Authority is presently in progress, nor has the Company been notified of any request for such a prospective audit or other examination. The Seller warrants that no adjustment relating to any tax returns filed by the Company has been asserted against proposed by any appropriate authority to the Company, or any representative thereof. As of the Accounts Date, and as per the Accounts Statement the Company or does not have any Subsidiary that liability for any unpaid Taxes which has not been settled with all amounts due having been paidaccounted for or reserved in the delivered Audited Accounts and Accounts Statement.
9.4. all Tax payments have been duly and punctually made in accordance with applicable Laws and except as stated as part of the contingent liabilities, the Company has not received any demand imposing liability to pay any penalty, fine, surcharge or interest to any Tax Authority in connection with any delays relative to Tax payments.
9.5. The Company has not received any written notice in the past 7 (dseven) No lien years challenging the Tax benefits under Income Tax Act, 1961 that have been properly claimed by the Company.
9.6. The Company has withheld with respect to its employees and all other third parties, all applicable Taxes has been filed required to be withheld by applicable Law and no deficiency or addition have made payment of such Taxes to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against appropriate authorities within the Company or any Subsidiary.
(e) due dates thereof. The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts for appropriate contributions to the provident fund, superannuation, gratuity, employee state insurance and any other contributions as required by Applicable Laws to be withheld applicable Law.
9.7. The Company has paid service tax on listing fee and promotional income for each financial year after the financial year 2014-15.
9.8. The Company has ensured that appropriate GST has been paid by the Company, under reverse charge mechanism on procurements from unregistered persons. Further, the wages or salaries of employeesCompany warrants that the GST credit balance as at the Closing Date is available.
9.9. The Company, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary Seller on behalf of the Company have has not received any liability for Taxes written notice of any audit or other Person under Treasury Regulations § 1.1502-6 (proceeding by a Tax Authority in respect of any Tax returns referred to above. There is no pending or to the Seller and Company’s knowledge, threatened litigation or any similar provision of non-U.S., state or local Law) or otherwise, other than legal proceeding ending before Tax Authority except for as disclosed in the consolidated group of which the Company is currently the parent corporationDisclosure letter.
(h) Neither 9.10. Amounts disclosed in the Company nor Audited Accounts and Accounts Statement as being recoverable from any Subsidiary has engaged Tax Authorities are actually recoverable from such Tax Authorities and adequate provisions have been made in any transaction the Company’s audited financial statements for amounts of tax that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of are not recoverable from the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Tax Authorities.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share Purchase Agreement
Tax. (a) To the Seller’s Knowledge, all Tax Returns required to be filed by or on behalf of each Seller have been duly filed on a timely basis and such Tax Returns were, when filed, true, complete and correct in all material respects. All Taxes shown to be payable on such Tax returnsReturns or on subsequent assessments with respect thereto have been paid in full on a timely basis, Tax reports, information returns, declarations of estimated Tax and no other declarations Taxes are due and statements payable by a Seller with respect to Taxes (collectively, “Tax Returns”) required to have been filed items or periods covered by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any such Tax ReturnReturns). Except as set forth in Section 2.17(a) for which of the Company or any Subsidiary may be liable have been timely paidDisclosure Schedule, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effectextent applicable, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and Seller has withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from the wages or salaries of employeesover, and neither complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens on any of the Company nor any Subsidiary is liable for any Taxes for failure Purchased Assets with respect to comply with such Applicable LawsTaxes.
(fb) No claimThe amount of either Seller’s liabilities for unpaid Taxes for all periods through December 31, or notice of claim2011 does not, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that aggregate, exceed the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) amount of the Code filing liability accruals for Taxes reflected on the Financial Statements, and the Most Recent Financial Statements properly accrue in accordance with GAAP all liabilities for Taxes of a combined federal income Tax return (or any similar provision of non-U.S.Seller payable after December 31, state or local Law) nor does the Company or any Subsidiary of the Company have any 2011 attributable to transactions and events occurring prior to such date. No liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 a Seller has been incurred or material amount of taxable income has been realized (or any similar provision of non-U.S.prior to and including the Closing Date will be incurred or realized) after December 31, state or local Law) or otherwise, 2011 other than in the consolidated group ordinary course of which the Company is currently the parent corporationbusiness.
(hc) No audit of the Tax Returns of or including either Seller by a Governmental Authority or Regulatory Authority is in process, threatened or, to the Seller’s Knowledge, pending. To the Seller’s Knowledge, no deficiencies exist or have been asserted with respect to Taxes of either Seller, and neither Seller has received notice that such Seller has not filed a Tax Return or paid Taxes required to be filed or paid. Neither Seller is a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened against any Seller or any of its assets. 138358.00102/7150960v.7
(d) Neither the Company nor Seller is (or has it ever been) a party to any Subsidiary tax sharing agreement. Since inception, neither Seller has engaged been a distributing corporation or a controlled corporation in any a transaction that could give rise to a disclosure obligation as a “reportable transaction” under described in Section 6011 355(a) of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)Code.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Tax returnsIf the Buyer has a legal responsibility to directly pay to the appropriate taxing authority any Taxes included in the payment due to the Supplier, Tax reportsthe Buyer may withhold and deduct the amount of such Taxes from the amounts payable otherwise due to the Supplier in accordance with the Agreement. The Buyer shall not be liable to the Supplier, information returnsand the Supplier shall have no Claim against the Buyer, declarations of estimated Tax for any amount that would otherwise be payable to the Supplier that the Buyer has withheld from the amounts payable to the Supplier and other declarations and statements with respect either has paid or has not yet remitted to Taxes (collectivelythe taxing authorities, “Tax Returns”) required to have been filed by or until the Buyer is released from all liability with respect to the Company amount so withheld and each Subsidiary is lawfully entitled to pay said sum to the Supplier. Any amount so withheld by the Buyer will be deemed to have been timely filed (taking into account made on the Supplier’s behalf as if the payment had been made to the Supplier and will relieve the Buyer of any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required further obligation to be paid by or the Supplier with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effectsuch amount. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment Supplier may avoid withholding of all material certain Taxes for periods subsequent by providing written documentation to the periods Buyer prior to payment indicating that the Supplier is lawfully exempt from or otherwise not subject to such Taxes being deducted from payment, however, the Buyer shall have the right to accept or reject such documentation or to require further evidence of the Supplier’s taxable status. The Supplier shall be solely responsible for any administration as required by any and all competent authorities, including, but not limited to, payroll, pension arrangements, Tax, social security contributions and other mandatory dues and related matters which such Tax Returns apply.
(b) Except where such unpaid Tax would not have may arise as a Material Adverse Effect, there are no unpaid Taxes claimed consequence of the Agreement and the Supplier undertakes to be due by fully inform itself prior to the Taxing authority date of the commencement of any jurisdiction, and the officers Services of the Company and each Subsidiary know of no basis requirements for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled due compliance with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed Tax and/or social security obligations and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxescosts, including sales third party consultancy and use Taxesadvisory costs, and has withheld and paid over all amounts required by Applicable Laws related to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has compliance shall at all times beenremain for the account of the Supplier. The Supplier warrants to the Buyer that it will comply with all obligations for full and timely compliance as required by the relevant competent authorities, classified including, but not limited to, information, documentation, certification, registration, reporting, withholding and payment of any and all Taxes, of whatever name and nature, including, but not limited to, any withholding from remuneration derived from the Agreement; social security contribution; corporate taxation; income tax and any other contribution and/or premiums for unemployment or medical insurance and/or workers compensation in accordance with all applicable laws, rules and regulations. The parties shall comply with any applicable laws relating to import, VAT, goods and services tax and customs duties. Without prejudice to any other Clause of the Agreement, the Supplier shall indemnify and hold harmless the Buyer Group against all Claims and in respect of all loss suffered by them as a corporation for U.S. federal income tax purposesresult of or relating to violations of this Clause. For the avoidance of doubt, ▇▇▇▇▇▇ 14 shall not apply in respect of a party’s rights of indemnity under this Clause.
Appears in 1 contract
Sources: Terms and Conditions for the Purchase of Goods and Services
Tax. (a) (i) All federal and state Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that were or are required to be filed on or before the Closing Date by Parent or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been will be timely filed (taking into account any extensions) on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and accurate and disclose were or will be prepared in substantial compliance with all Applicable Laws; (ii) all Taxes required to be paid due and owing by Parent or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to Parent's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by Parent to Parent and adequately reserved for in Parent Financial Statements. Neither Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to Parent or any of its Subsidiaries. Neither Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where such unpaid Parent or its Subsidiaries have not filed Tax would not have a Material Adverse EffectReturns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, there are no unpaid Taxes claimed to be due asserted or assessed by the any Taxing authority Authority against Parent or any of any jurisdiction, and the officers its Subsidiaries. Section 4.14(b) of the Company Parent Disclosure Letter lists all Tax Returns filed by Parent and its Subsidiaries for taxable periods ended on or after March 31, 2012, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by Parent and each Subsidiary know of no basis its Subsidiaries for taxable periods ended on or after March 31, 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by Parent or any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed of its Subsidiaries with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods respect to and including the dates of such financial statementsthose taxable periods.
(c) There are no Liens on Parent’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP in the Parent Financial Statements.
(d) Neither Parent nor any of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any extension of time with respect to an income Tax assessment or deficiency.
(e) Parent and its Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Third Party.
(f) Except as listed on Section 4.14(f) of the Company Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was Parent); or (B) has any liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.14(f) of the Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 4.14(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Parent or any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor and that is any such claim, dispute, Action or proceeding threatened by any Taxing authority, treated as a partnership for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidfederal income Tax purposes.
(dh) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or Neither Parent nor any Subsidiary has, nor has been proposedit ever had, asserted a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or assessed against convention between the Company United States and such foreign country, nor has it otherwise taken steps that have exposed, or any Subsidiarywill expose, it to the taxing jurisdiction of a foreign country.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(fi) No claim, or notice of claim, claim has ever been made in the last five (5) years by an authority a Taxing Authority in a jurisdiction where the Company Parent or a any Subsidiary does not file Tax Returns that the Company Parent (or such Subsidiary Subsidiary) is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual or legal basis for any such claim.
(gj) Neither the Company Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither Parent nor any Subsidiary is or has been a member United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an affiliated group of corporations international boycott within the meaning of Section 1504(a) 999 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(hm) Neither the Company Parent nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation that, as of the date hereof, is a “reportable listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code and Treasury Regulations promulgated thereunder with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either Parent or any Subsidiary, and, except as listed on Section 4.14(n) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has obtained a private letter ruling or closing agreements from the IRS (or any similar provision of non-U.S., state or local Lawcomparable ruling from any other Taxing Authority).
(o) Neither Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; or (C) a “passive foreign investment company” nor has Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 4.14(q) of the Parent Disclosure Letter, there is no agreement, contract or arrangement to which Parent or any Subsidiary is a party that would, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither Parent nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) The Company ispursuant to Section 481 of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(s) Parent and its Subsidiaries have complied in all material respects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, Parent and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the extent required by Law, remit such unclaimed property to the applicable Governmental Entity. Parent’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the foregoing representations.
(t) All transactions for taxable years for which the statute of limitations is still open (including but not limited to sales of goods, loans, and provision of services) between (i) Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by Parent (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Parent and each Subsidiary in filing its Tax Returns. Since the filing of Parent Financial Statements, neither Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) Parent operates at least one significant historic business line, or owns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d). (w) Parent has provided or otherwise made available to Parent all times beenof Parent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of Parent or its Subsidiaries that have been received since December 31, classified as a corporation for U.S. federal income tax purposes2011.
Appears in 1 contract
Sources: Merger Agreement (CollabRx, Inc.)
Tax. (a) All The Company’s have timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that each Company’s was required to have been filed. All Tax Returns filed by the Company’s are true, correct and complete in all material respects. All Taxes owed (or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid remitted) by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes Company’s (whether or not shown or required to be shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to which such Tax Returns applyappropriate Governmental Body.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by To the Taxing authority Knowledge of any jurisdiction, each Company’s and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payableSeller, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary any Company’s does not file Tax Returns that the Company or such Subsidiary Company’s is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. To the Knowledge of each Company’s and the Seller, there are no Encumbrances on any of the assets of any Company’s that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.13 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which each Company’s has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all Tax rulings and similar determinations requested or received by any Company’s or Seller, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material Tax elections that were made by or on behalf of any Company’s. The Company’s have delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, each Company’s during the six-year period ending on the date hereof.
(gc) Neither the Company nor any Subsidiary has The Company’s (i) have never been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code Affiliated Group filing a combined consolidated federal income Tax tax return (other than a group the common parent of which was EFL), (ii) have never been a party to any Tax sharing, indemnification or any similar provision of non-U.S.allocation agreement, state or local Law) nor does the Company or any Subsidiary of the Company Company’s owe any amount under any such agreement, (iii) does not have any liability for Taxes of any other Person person under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local or local Law) foreign law, and including any arrangement for group relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract, or otherwise, and (iv) has never been a party to any joint venture, partnership or other than agreement or arrangement that could be treated as a partnership for Tax purposes.
(d) The Company’s have never constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for a tax-free treatment under Code Section 355.
(e) Each Company’s has withheld or collected, and timely paid to the consolidated group appropriate Governmental Body, all Taxes required to have been withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to any employee, customer, creditor, stockholder, independent contractor, or other third party.
(f) To the knowledge of the Seller and the Company’s, there is no reasonable basis for any Governmental Body to, and neither Seller nor any director or officer (or employee responsible for Tax matters) of any Company’s has received notice that any Governmental Body will, assess any additional Taxes for any period. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted (or to be paid, collected or permitted) by such Company’s either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any of the Company Seller or such Company’s has Knowledge. No Company’s has waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Company’s has been requested, granted or currently is currently in effect.
(g) Since the parent corporationInterim Date, no Company’s has incurred any Liability for Taxes outside the Ordinary Course of Business.
(h) Neither the Company nor any Subsidiary has engaged No Company’s has, directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) that could give rise to a disclosure obligation as would constitute (i) a “reportable transaction” under or “listed transaction” as defined in Treasury Regulation Section 6011 of 1.6011-4 or (ii) a “tax shelter” as defined in Code Section 6111 and the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)thereunder.
(i) The Company isCompany’s will not 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, including as a result of: (i) a “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date; (ii) change in method of accounting under Code Section 481(c); (iii) deferred intercompany gain or excess loss account under Treasury Regulations under Code Section 1502; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(j) Schedule 4.13 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee benefit Plan) to which each Company’s is a party that is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A and the Treasury Regulations thereunder. Each such nonqualified deferred compensation plan (i) complies, and is operated and administered in accordance, with the requirements of Code Section 409A, the Treasury Regulations thereunder and any other IRS guidance issued thereunder and (ii) has at all times been, classified as a corporation for U.S. federal income tax purposesbeen operated and administered in good faith compliance with Code Section 409A from the period beginning on the adoption of such nonqualified deferred compensation plan.
Appears in 1 contract
Sources: Member Unit Purchase Agreement (Alpine 4 Technologies Ltd.)
Tax. (a) All Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the aggregate:
(i) Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose prepared in compliance in all Taxes required to be paid by or respects with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectall applicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(bii) Except where such unpaid Each of Trident and the Trident Subsidiaries has (A) timely withheld and paid to the appropriate Tax would not authority all amounts required to have a Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any employee, there are no unpaid Taxes claimed individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable law relating to be due by the Taxing authority of any jurisdictionwithholding, collection, and the officers remittance of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and (including the dates of such financial statementsinformation reporting requirements).
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company Trident or any Subsidiaryof the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in all material respects with all Applicable Laws relating to the payment and withholding respect of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages any Tax or salaries of employees, Tax asset and neither the Company Trident nor any Subsidiary is liable for of the Trident Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax or Tax asset.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice of claimissued by any Tax authority with respect to any of, has ever been made by an authority in a jurisdiction where Trident or the Company Trident Subsidiaries which agreement or a Subsidiary does not file Tax Returns that ruling would be effective after the Company or such Subsidiary is or may be subject to taxation by that jurisdictionClosing Date.
(gvi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or any of the Trident Subsidiaries.
(vii) Neither the Company Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(viii) During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (other than a group the common parent of which was Trident or any similar provision of non-U.S., state Trident Subsidiary) or local Law(ii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than Trident or any Trident Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationas a transferee or successor.
(hx) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither the Company Trident nor any Trident Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a commercial Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are Trident or any similar provision of non-U.S., state or local Lawother Trident Subsidiaries).
(ixii) The Company Trident is, and has at all times always been, classified treated as a corporation for U.S. federal income tax purposes. Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Trident or any Trident Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents publicly available prior to the date of this Agreement reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as a Tax resident of any jurisdiction other than Israel following the Sun Merger.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the fair value of the underlying Trident Common Stock (or any shares of any Trident Subsidiary) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Tax. (a) 16.1 All Tax returnsobligations (including payment of Taxes) and all the Tax Returns that were required by Law or by any ruling, clearance, confirmation or consent of a Tax reports, information returns, declarations Authority to have been fulfilled or filed with a Tax Authority by any Group Company in relation to fiscal years for which the relevant statute of estimated Tax limitation for tax assessment purposes has not expired at the date of this Agreement have been timely and other declarations duly fulfilled or filed in accordance with applicable Laws and statements its relevant applicable interpretation with respect to Taxes (collectivelyall applicable Taxes, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete were and remain true, accurate and disclose complete in all Taxes required respects pursuant to be paid by and in accordance with the applicable Laws.
16.2 No claim for assessment, injunction or request for payment of or with respect to Tax or notice of assessment or other written notices or enquiries in relation to Tax has been asserted against any Group Company in relation to fiscal years for which the relevant statute of limitation for tax assessment purposes has not expired at the date of this Agreement, nor is the Seller aware (having made reasonable enquiries) of any circumstances on which such a claim can be validly based, or of any Tax investigation, audit, examination, claim, dispute, enquiry or visit by any Tax Authority or other similar proceeding pending or threatened with respect to any Taxes (or from which a Tax assessment, injunction or request for payment of Tax may arise).
16.3 All Tax for which each Group Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which has been liable to file would not have a Material Adverse Effect. All Taxes pay or is liable to account (whether or not shown to be due on any Tax ReturnReturns) has been duly, timely and entirely paid (insofar as such Tax ought to have been paid) in accordance with applicable Law. All Taxes which are not yet due and payable but which relate to periods ending on or before the date of this Agreement have been provided for in the books and records of the Group in compliance with the applicable Law.
16.4 No Group Company is or has, in relation to fiscal years for which the Company or any Subsidiary may be relevant statute of limitation for tax assessment purposes has not expired at the date of this Agreement, been, liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the any penalty, interest, fine, surcharge or other similar payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyin connection with any Tax.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority 16.5 The Group Companies’ Statutory Accounts make full provision or reserve in accordance with generally accepted accounting practice in respect of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown period ended on the financial statements filed with the SEC Documents are sufficient or before 31 March 2024 for all accrued and unpaid TaxesTax assessed on any Relevant Company, or for which any Relevant Company is accountable at that date, whether or not disputedsuch Relevant Company has (or may have) any right of reimbursement against any other person. Provision has been made and shown in the Relevant Companies respective Statutory Accounts, for the financial year ending on 31 March 2024 for deferred Tax in accordance with generally accepted accounting practice as at 31 March 2024.
16.6 All Taxation has, so far as has been required by law to be deducted, withheld or retained, been deducted, withheld or retained from all payments made (or treated as made) by each Group Company and all amounts so deducted or withheld, including wage tax, have been properly accounted for and paid, within applicable time limits, to the Tax Authority, including for the avoidance of doubt all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
16.7 Each Group Company has not been incorporated with the principal purpose of obtaining a tax benefit and has not, at any time in any fiscal years for which the relevant statute of limitation for tax assessment purposes has not expired at the date of this Agreement, been treated as resident in any other jurisdiction for any Tax purposes (including but not limited to any treaties for the avoidance of double taxation). No Group Company has, or has had in any fiscal years for which the statute of limitation for tax assessment purposes has not expired at the date of this Agreement, a permanent establishment (including for VAT purposes), nor is it or has it otherwise been subject to Tax, outside its jurisdiction of incorporation (except in respect of VAT). For the avoidance of doubt, for the purposes of this paragraph 16.7, a Group Company simply having a VAT registration outside its jurisdiction of incorporation shall not be considered as that Group Company having a permanent establishment for these purposes.
16.8 Each Group Company has for fiscal years for which the statute of limitation for tax assessment purposes has not expired at the date of this Agreement, complied in all respects with all statutory provisions, rules, regulations, orders and directions in relation to the business of the Group concerning VAT (and including but not limited to other indirect taxes) and any payroll Taxes and social security contributions including the making on time of accurate and complete returns and payments and the proper maintenance and preservation of records, and no Group Company has, in fiscal years for all periods to and including which the dates statute of such financial statementslimitation for tax assessment purposes has not expired at the date of this Agreement, been given any penalty, notice or warning in respect of the same.
16.9 Each Group Company that is required to be registered for Tax (cincluding but not limited to VAT or other indirect taxes) Neither is so registered and is a taxable person for the purposes of the Tax legislation applicable to it (including but not limited to VAT or other indirect taxes) and it is entitled to fully recover input VAT attributable to the business of the Group or the single entity, in accordance with its VAT profile.
16.10 No Group Company nor is liable for any Subsidiary Tax which is the primary liability of any person other than a Group Company. No Group Company is a party to or bound by any claim, dispute, audit, pending Action Tax allocation or proceedingsharing agreement, nor does any Group Company have any outstanding liability for Tax pursuant to any Tax allocation or sharing agreement that it was (but is no longer) a party to, or bound by, in the last five years.
16.11 All agreements, arrangements or transactions entered into by the Seller, each Group Company or any such claimentity or person who is a related party are on arm’s length terms, disputeand the relevant Group Company retains full records, Action contemporaneous documents and other evidence sufficient to satisfy any requirement to demonstrate that the relevant agreement, arrangement or proceeding threatened transaction to which it was a party was entered into on arm’s length terms, which are required to be retained by any Taxing authorityrelevant Law.
16.12 The Group maintains complete and accurate books of accounts as required by the Law and the application thereof by the competent Tax Authority, records, invoices and all the other information in relation to Tax that meet all legal and tax deduction requirements.
16.13 All Reliefs utilised by each Group Company to offset the payment of Taxes were properly computed and utilised in accordance with applicable Laws. All the documentation required by the applicable Law and supporting the entitlement to benefit from all Reliefs that have been applied before the date of this Agreement or that exist as at the date of this Agreement is duly kept by the relevant Group Company.
16.14 All stamp duties or similar transfer taxes (including interest and penalties) in respect of all documents or transactions necessary to establish any Group Company’s right or title to any asset have been paid, and all such documents requiring stamping have been duly stamped.
16.15 No Group Company has entered into, been a party to or promoted any scheme or arrangement which has no commercial purpose or of which the main purpose, or one of the main purposes, was the avoidance of or the reduction in or the deferral of a liability to Tax.
16.16 Each Group Company has withheld and remitted to the competent Tax Authorities any withholding tax and reported the related withholding obligation (if applicable) which may be due in respect of the payments of interests, dividends and royalties to its shareholders or any other parties. The shareholders of each Group Company or any other parties are the beneficial owners (with the meaning provided under the applicable treaties for the avoidance of double taxation), for the assessment or collection purposes of the application of any Taxes reduced rate WHT or any WHT exemption, of the payments performed by the Group Company in relation to dividends, interest and no claim royalties and all the documentation required to apply the reduced WHT rate under the applicable double taxation arrangements has always been duly and timely collected and kept by each Group Company for the assessment or collection purpose of benefit from the treaty conditions.
16.17 Any transaction carried out by any Taxes Group Company (and/or the Seller and/or any other Group Company) prior to Completion has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required is supported by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwisevalid economic reasons, other than mere Tax purposes and has been carried out in compliance with the consolidated group applicable anti-abuse rules. The implementation of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could transactions contemplated under this Agreement will not give rise to a disclosure obligation as a “reportable transaction” under Section 6011 any deemed disposal or realisation by any Group Company of the Code and Treasury Regulations promulgated thereunder (any asset or liability for any similar provision of non-U.S., state or local Law)Tax purpose.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share Purchase Agreement (MYT Netherlands Parent B.V.)
Tax. (a) The Company has timely filed (or will timely file for any Pre-Closing Tax Period) all material Tax Returns required to be filed by it in all applicable jurisdictions before the Closing Date. All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to Returns that have been filed by by, or with respect to to, the Company are true, complete and each Subsidiary have been timely filed (taking into account any extensions) correct in all material respects, report all income and all such Tax Returns are complete other amounts and accurate information required to be reported thereon, and disclose all Taxes Tax required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby. Except as disclosed in Schedule 6.1(35)(a) of the Vendor Group Disclosure Letter, except for the Company has timely paid (or will timely pay) all material Tax Returns due and payable by it, including all instalments on account of Tax that are due and payable before the failure Closing Date, whether or not assessed by the appropriate Governmental Authority, and has paid all assessments and reassessments they have received in respect of all Tax. No extension of time in which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyis in effect. No Governmental Authority has asserted that the Company is required to file Tax Returns or pay any Taxes in any jurisdiction where it does not do so.
(b) Except where such unpaid Tax would not have a Material Adverse Effectas disclosed in Schedule 6.1(35)(b) of the Vendor Group Disclosure Letter, there are no unpaid Taxes claimed audits, reassessments or other Proceedings in progress or, to be due by the Taxing authority knowledge of the Vendor Group, threatened against the Company, in respect of any jurisdictionTax and, and the officers of the Company and each Subsidiary know of in particular, there are no basis for currently outstanding reassessments or written enquiries which have been issued or raised by any Governmental Authority relating to any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsTax.
(c) Neither The Company has collected, withheld and deducted the Company nor any Subsidiary is a party amount of all material Taxes required to any claimbe collected, disputewithheld and deducted and has timely remitted such amounts when due, auditin the form required under Applicable Laws, pending Action or proceedingif not yet due, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, made adequate provisions in its Books and Records for the assessment or collection payment of any Taxes and no claim for such amounts to the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidproper receiving authorities.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations Except as disclosed in Schedule 6.1(35)(d) of the Vendor Group Disclosure Letter, the Company has not claimed, and will not claim any reserve under any provision of the Tax Act or any Subsidiary analogous provision of any comparable Applicable Law of any province of Canada in respect of its taxation year ending in connection with the Closing, except to the extent it has been proposed, asserted or assessed against claimed an equivalent reserve that is taken into account in the Company or any SubsidiaryClosing Statements in a manner that reduces the Purchase Price.
(e) The Company and each Subsidiary has complied will not be required to include amounts in all material respects with all Applicable Laws relating income, or exclude items of deduction, in any taxable period (or portion thereof) ending after the Closing by reason of (i) a change in method of accounting for any tax period or portion thereof ending on or prior to the payment and withholding Effective Time, (ii) the use of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries an improper method of employees, and neither the Company nor any Subsidiary is liable accounting for any Taxes for failure tax period or portion thereof ending on or prior to comply with such Applicable Lawsthe Effective Time, or (iii) a prepaid amount received or deferred revenue accrued on or prior to the Effective Time.
(f) No claim, or notice The Company has not acquired property from a Person not dealing at arm’s length (for purposes of claim, has ever been made by an authority the Tax Act) with it in a jurisdiction where circumstances that would result in the Company becoming liable to pay Taxes of such Person under subsection 160(1) of the Tax Act or a Subsidiary does not file Tax Returns that the Company any analogous provision of any comparable Applicable Law of any province or such Subsidiary is or may be subject to taxation by that jurisdictionterritory of Canada.
(g) Neither the The Company nor has not undertaken, participated in or been contractually obligated to participate in any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a“reportable transaction” as defined in subsection 237.3(1) of the Code filing a combined federal income Tax return (Act, any “notifiable transaction” as defined in subsection 237.4(1) of the Tax Act or any similar provision of non-U.S., state or local transaction under any Applicable Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither Except as disclosed in Schedule 6.1(35)(h) of the Vendor Group Disclosure Letter, for all transactions between the Company, on the one hand, and any non-resident Person with whom the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 was not dealing at arm’s length, for the purposes of the Code and Treasury Regulations promulgated thereunder Tax Act, on the other hand, the Company has made or obtained records or documents that satisfy the requirements of paragraphs 247(4)(a) to (or any similar provision c) of non-U.S., state or local Law)the Tax Act.
(i) The Company ishas not made any “excessive eligible dividend designation” nor paid a capital dividend in excess of its “capital dividend account” at the time of payment, all as defined in the Tax Act.
(j) There are no circumstances or situations existing, or that have existed, which have resulted, or which could result in the application of sections 15, 17, 78 or 80 to 80.04 of the Tax Act or any equivalent provision of any Applicable Law to the Company.
(k) The Company is not a “non-resident” of Canada for the purposes and has at all times been, classified as within the meaning of the Tax Act.
(l) The Vendor Newco will not be a corporation “non-resident” of Canada for U.S. federal income tax purposesthe purposes and within the meaning of the Tax Act.
Appears in 1 contract
Tax. (a) All 3.17.1. Each of Objet and its Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose all Taxes required to be paid by or with respect accurate, except to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the extent any failure of which to file or any inaccuracies in any filed Tax Returns, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse EffectEffect on Objet. All Taxes (whether shown to be due on such Tax Returns, or not shown on any Tax Return) for which the Company or any Subsidiary may be liable otherwise owed, have been timely paid, except for Taxes to the extent that any failure of which to pay pay, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectEffect on Objet. The Company Each of Objet and each Subsidiary have set aside on its books provision reasonably adequate for Subsidiaries has complied with all applicable Laws relating to Taxes including Laws relating to (i) the withholding and payment over to the appropriate Governmental Entity or other Tax authority of all material Taxes for periods subsequent required to be withheld by Objet or any of its Subsidiaries, (ii) information reporting with respect to, any payment made or received by Objet or any of its Subsidiaries and (iii) the keeping of books and records, except to the periods extent any failure to which such Tax Returns apply.
(b) Except where such unpaid Tax so comply, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claimEffect on Parent.
3.17.2. The provisions for Taxes payable, if any, shown on the most recent financial statements filed with contained in the Objet SEC Documents are sufficient reflect an adequate reserve for all accrued Taxes payable by Objet and unpaid Taxes, whether or not disputed, its Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods to and including portions thereof through the dates date of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) . No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed against the Company Objet or any Subsidiaryof its Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending, except to the extent any such deficiency or request for waiver, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on Objet. There is no audit, proceeding or investigation now pending against or with respect to Objet or any of its Subsidiaries in respect of any Tax or Tax asset and neither Objet nor any of its Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset, except to the extent that any such pending or proposed audit, proceeding or investigation has not had and would not reasonably be expected to have a Material Adverse Effect on Objet.
3.17.3. There are no material Liens for Taxes (eother than for current Taxes not yet due and payable) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to on the payment and withholding assets of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages Objet or salaries any of employees, and neither the Company its Subsidiaries. Neither Objet nor any Subsidiary of its Subsidiaries is liable for bound by any Taxes for failure agreement with respect to comply with such Applicable LawsTaxes.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) 3.17.4. Neither the Company Objet nor any Subsidiary of its Subsidiaries has entered into or has been a member “material advisor” with respect to any transactions that are or would be part of an affiliated group of corporations within the meaning of Section 1504(a) any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or under any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationregulations thereunder.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Stratasys Inc)
Tax. (ai) All Tax notices, filings computations, registrations, returns, Tax reportsdocuments, information returns, declarations of estimated applications for non-liability to Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required information which ought to have been filed given or made, have been properly and duly submitted by or with respect the Company to the relevant Tax Authority and all notices, filings, computations, registrations, returns and information submitted to such authority are true, accurate, complete and not misleading and are not the subject of any material dispute, audit or review nor are likely to become the subject of any material dispute, audit or review with such authorities.
(ii) All records, invoices and other documents which the Company and each Subsidiary is required to keep for Tax purposes, or which would be needed to substantiate any claim made or position taken in relation to Tax by the Company, have been timely filed duly kept and are available at the premises of the Company.
(taking into account iii) The Company is not currently the beneficiary of any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure extension of time within which to file would not have a Material Adverse Effectany tax return. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no No claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary does not file Tax Returns tax returns that the Company or such Subsidiary is or may could be subject to taxation by that jurisdiction, nor is there any reasonable basis for such a claim.
(giv) Neither The Company has paid in due time or has made provisions for the payment of, or the Seller will cause to pay, all taxes of any nature or kind whatsoever that are or have been due and payable or that will be due and payable prior to the Closing Date.
(v) The Company has any liability, obligation or commitment for the payment of any taxes or duties of any nature or kind whatsoever, or interest or penalties with respect thereto, except such as are disclosed in the Financial Statements or such taxes or duties not yet due as they have arisen since the Financial Year End Date in the Ordinary Course and for which adequate provision in the accounts of the Company nor any Subsidiary has been a member made and are reflected in the Financial Statements, and the Company is not in arrears with respect to any required withholdings or instalment payments of an affiliated group any tax or duty of corporations within any nature and kind whatsoever and has not waived any statute of limitations in respect of Tax for any legislation imposing Tax on the meaning Company.
(vi) All payments made by the Company to any parties subject to withholding Taxes have been correctly made and paid in due time and form in accordance with the applicable Tax law.
(vii) Except for the Litigation Proceedings listed in Schedule 2.5(a), the Company is not pending any proceeding which may result in liability as consequence of Section 1504(abusiness succession or Tax debts of third parties.
(viii) All the transactions performed by the Company with other related parties have been entered into with arm’s length conditions and duly complying with applicable tax regulations, and as such is documented and evidenced through the relevant transfer pricing files, which fulfill all the requirements established by the applicable tax laws.
(ix) Except for the Litigation Proceedings listed in Schedule 2.5(a), the Company is not involved in any current dispute with any Tax Authority. The Company has not been subject to or is currently subject to any investigation, audit or visit by any Tax Authority, and neither the Seller nor the Company is aware of any such investigation, audit or visit planned. To the Knowledge of the Code filing Seller, there are no pending reassessments of the Company’s taxes that have been previously conducted or been issued and are outstanding and there are no outstanding issues in respect of taxes which have been raised and communicated to the Company or to the Seller by any Governmental Authority for any taxation year in respect of which a combined federal tax return of the Company has been audited. The Company will not be required to recognize after this Closing Date any taxable income with respect to the period prior to this Closing Date in respect of any accounting method adjustments required to be made under any legislation imposing Tax return on the Company.
(x) Any accrual for taxes reflected in the Financial Statements will be adequate to pay all tax liabilities of the Company and the Company is entitled to the entire amount of and has made proper claim for any refund of taxes included in the Financial Statements, whether as a receivable, a prepaid expense or as a reduction of a liability.
(xi) The administration of the Company has been properly maintained and contains accurate records of all matters required to be entered in them in order to provide for a reliable audit trail.
(xii) The Company has not benefited from any similar provision incentive or tax regime whereby was obliged to comply with any requirements or undertakings whatsoever, except for the ones listed in Exhibit 11.
(xiii) All incentives and benefits (incentivos, subsídios estaduais ou outros apoios públicos de natureza similar) obtained by the Company were prepared, submitted and are being duly executed in compliance with the applicable legal provisions. No notification of non-U.S., state or local Law) nor does compliance has been received by the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationto this date.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(ixiv) The Company is, and always has at all times been, classified as a corporation resident only in its jurisdiction of incorporation for U.S. federal income tax purposesTax purposes and for the purposes of any double taxation agreement.
Appears in 1 contract
Tax. (a) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect Returns required by Law to Taxes (collectively, “Tax Returns”) required to be filed by Acquiror or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) filed, and all such Tax Returns are true, correct and complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of in all material Taxes for periods subsequent to the periods to which such Tax Returns applyrespects.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid All material amounts of Taxes claimed to be due and owing by the Taxing authority of any jurisdictionAcquiror and its Subsidiaries have been paid, and since the officers date of the Company and each Subsidiary know most recent balance sheet of no basis for the Acquiror neither the Acquiror nor any such claim. The provisions for Taxes payable, if any, shown on of its Subsidiaries have incurred or accrued any material Tax liability or material amounts of taxable income or gain outside the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates ordinary course of such financial statementsbusiness.
(c) Neither the Company nor any Subsidiary is a party Each of Acquiror and its Subsidiaries has (i) withheld and deducted all amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any claimemployee, disputeindependent contractor, auditcreditor, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company shareholder or any Subsidiary that has not been settled with all other third party, (ii) remitted, or will remit on a timely basis, such amounts due having been paid.
to the appropriate Governmental Authority; and (diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with applicable Law with respect to Tax withholding, including all Applicable Laws relating reporting and record keeping requirements;
(d) Neither the Acquiror nor any of its Subsidiaries is engaged in any material audit, administrative proceeding or judicial proceeding with respect to Taxes,. Neither the payment and withholding Acquiror nor any of its Subsidiaries has received any written notice from a Governmental Authority of a dispute or claim with respect to a material amount of Taxes, including sales and use Taxesother than disputes or claims that have since been resolved, and to the knowledge of the Acquiror, no such claims have been threatened. No written claim has withheld and paid over all amounts required been made, since January 1, 2017, by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority Governmental Authority in a jurisdiction where the Company Acquiror or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return that the Company or such Subsidiary entity is or may be subject to taxation Taxes by that jurisdiction. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of the Acquiror or any of its Subsidiaries and no written request for any such waiver or extension is currently pending.
(e) Neither the Acquiror nor any of its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) since January 1, 2017.
(f) Neither Acquiror nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(g) Neither the Company Acquiror nor its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in, or use of an improper, method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (B) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income tax law); (C) installment sale or open transaction disposition made prior to the Closing; (D) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income tax law); (E) prepaid amount or deferred revenue received prior to the Closing; or (F) any election under Section 108(i) of the Code (or any corresponding or similar provision of state, local or foreign income tax law). Neither the Acquiror nor its Subsidiaries will be required to make any payment after the Closing Date as a result of an election under Section 965(h) of the Code.
(h) There are no Liens with respect to Taxes on any of the assets of the Acquiror or its Subsidiaries, other than Liens for Taxes not yet due and payable.
(i) Neither the Acquiror nor any Subsidiary of its Subsidiaries has been a member of an affiliated affiliated, combined, consolidated, unitary or other group for Tax purposes (other than an affiliated, combined, consolidated, unitary or other group consisting solely of corporations within the meaning of Section 1504(a) one or more of the Code filing a combined federal income Tax return (or Acquiror and its Subsidiaries). Neither the Acquiror nor any similar provision of non-U.S., state or local Law) nor does the Company or its Subsidiaries has any Subsidiary of the Company have any material liability for the Taxes of any Person (other Person than the Acqurior or its Subsidiaries) (i) under Treasury Regulations § Regulation Section 1.1502-6 (or any similar provision of non-U.S.state, state local or local foreign Law) or otherwise(ii) as a transferee or successor, by Contract or by application of Law (except, in each case, for liabilities pursuant to commercial contracts not primarily relating to Taxes).
(j) Neither the Acquiror nor any of its Subsidiaries is a party to, or bound by, or has any obligation to any Governmental Authority or other Person (other than the consolidated group of which the Company is currently the parent corporationAcquiror or its Subsidiaries) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in each case, for any such agreements that are commercial contracts not primarily relating to Taxes).
(hk) Neither The Acqurior has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that, would reasonably be expected to prevent the Company nor any Subsidiary has engaged in any Merger, taken together, from constituting a transaction that could give rise to a disclosure obligation qualifies as a “reportable transactionreorganization” under within the meaning of Section 6011 368(a) of the Code and the Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)thereunder.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Conyers Park II Acquisition Corp.)
Tax. (a) All 19.1 The Group Company has timely filed all Tax returns, Tax reports, information returns, declarations of estimated Tax returns and other declarations and statements with respect reports that are or were required by applicable Law to Taxes (collectively, “Tax Returns”) required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all it. All such Tax Returns returns filed by the Group Company are true, correct and complete in all respects and accurate and disclose were prepared in compliance with all applicable Laws.
19.2 The Group Company has timely paid all Taxes required to be paid by or with respect it and each Contract Assignor has paid all Taxes relating to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyPurchased Assets.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the 19.3 No Group Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claimTax sharing agreement, disputeTax allocation agreement, audit, pending Action Tax indemnity agreement or proceeding, nor is similar agreement or arrangement relating to Taxes that will require any such claim, dispute, Action payment by the Group Company after the Completion Date.
19.4 There are no liens for Taxes upon any property or proceeding threatened by any Taxing authority, for assets of the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Group Company or any Subsidiary that has the Purchased Assets except for statutory liens accruing but not been settled with all amounts yet due having been paidand payable.
(d) No lien 19.5 None of the Group Company or the Selling Parties has received a ruling from any Tax Authority with respect to Taxes has the Group Company or the Purchased Assets.
19.6 Section 19.6 of the Disclosure Schedule contains a complete and accurate list of all Tax Returns of the Group company or the Contract Assignors that have been filed audited or that are currently under audit and no deficiency accurately describes any deficiencies or addition other amounts that were paid or are currently being contested. All deficiencies proposed as a result of such audits have been paid, reserved against, settled or are being contested in good faith by appropriate proceedings as described on Section 19.6 of the Disclosure Schedule. The Selling Parties have delivered to TaxesPurchaser copies of any examination reports, interest statements or penalties for any Taxes deficiencies or similar items with respect to any income, properties or operations such audits. None of the Company Group company or any Subsidiary the Selling Parties has been proposed, asserted informed in writing by any Authority of the commencement or assessed against anticipated commencement of any such audit. Section 19.6 of the Disclosure Schedules contains a list of all Tax Returns for which the applicable statute of limitations has not run. Neither the Group Company or any Subsidiary.
nor Contract Assignor (e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws to the extent relating to the payment and withholding Purchased Assets) has waived any statute of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws limitations in respect of Taxes or agreed to be withheld and paid from the wages or salaries any extension of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply time with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise respect to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder Tax assessment or deficiency, which period (after giving effect to such waiver or any similar provision of non-U.S., state or local Law)extension) has not expired.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Cheetah Mobile Inc.)
Tax. (ai) All The Company and its Subsidiaries each (A) has filed all United States federal, state and local and all material foreign Tax returns, Tax reportsreports and declarations required by any jurisdiction to which it is subject (or obtained valid extensions thereof), information returns, declarations (B) has paid all of estimated Tax Taxes and other declarations governmental assessments and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company charges that are due and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes payable (whether or not shown or determined to be due on any Tax Returnsuch returns, reports and declarations) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have (C) has set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns returns, reports or declarations apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there . There are no unpaid Taxes claimed to be due by the Taxing taxing authority of any jurisdiction. All such Tax returns, reports and the officers declarations were correct and complete in all material respects. None of the Company and each Subsidiary know its Subsidiaries has waived any statute of no basis for limitations in respect of Taxes or agreed to any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed extension of time with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether respect to a Tax assessment or not disputed, and for all periods to and including the dates of such financial statementsdeficiency.
(cii) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations Each of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and its Subsidiaries has withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from the wages in connection with amounts paid or salaries of employeesowing to any employee, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsindependent contractor, creditor, stockholder, or other third party.
(fiii) No claimdirector or officer (or employee responsible for Tax matters) of the Company and its Subsidiaries, expects any authority to assess any additional Taxes for any period for which Tax returns have been filed. There is no dispute or notice claim concerning any Tax liability of claim, has ever been made any of the Company and its Subsidiaries either (A) claimed or raised by an any authority in a jurisdiction where writing or (B) as to which any of the directors and officers (and employees responsible for Tax matters) of the Company or a Subsidiary does not file Tax Returns that the Company or and its Subsidiaries has knowledge based upon personal contact with any agent of such Subsidiary is or may be subject to taxation by that jurisdictionauthority.
(giv) Neither None of the Company nor any Subsidiary and its Subsidiaries (A) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined consolidated federal income Tax return (other than an affiliated group the common parent of which was the Company) or (B) has any similar provision liability for the Taxes of non-U.S., state or local Law) nor does the Company or any Subsidiary person (other than any of the Company have any liability for Taxes of any other Person and its Subsidiaries) under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local, or local Law) foreign law), or as a transferee or successor, or by contract, or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(hv) Neither Master shall provide the Purchasers with a signed tax indemnity deed (“Tax Indemnity Deed”) to cover any tax payable by the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S.its subsidiaries, state which has not been disclosed to the Purchaser or local Law)in its accounts or financial statements, for twenty (20) years after the Closing Date.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share Purchase Agreement (Delta Technology Holdings LTD)
Tax. Except as disclosed in Schedule 5.7:
(a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company Assets:
(i) all material Asset Taxes that have become due and each Subsidiary have been timely filed (payable, taking into account any validly granted extensions, have been timely paid in full, when required to be paid;
(ii) all material Tax Returns with respect to the Asset Taxes, which are required to be filed, have been duly and timely filed, and all such Tax Returns are correct and complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of in all material Taxes for periods subsequent to the periods to which such Tax Returns apply.respects;
(biii) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Encumbrances for Taxes claimed (including any interest, fine, penalty, or additions to be due Tax imposed by a Governmental Authority in connection with such Taxes) on the Taxing authority Assets, other than Permitted Encumbrances;
(iv) no Seller has received any written notice of any jurisdiction, and the officers pending claim (which remains outstanding) from any Governmental Authority for assessment of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Asset Taxes, whether and, to Sellers’ Knowledge, no such claim has been made or not disputed, and for all periods to and including the dates of such financial statements.threatened;
(cv) Neither the Company nor any Subsidiary is a party to any claimSellers’ Knowledge, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority a Governmental Authority in a jurisdiction where the Company or a Subsidiary any Seller does not file Tax Returns (or a particular type of Tax Return) relating to the ownership or operation of the Assets that the Company or such Subsidiary Seller is or may be subject to taxation by in that jurisdiction.jurisdiction or required to file a particular type of Tax Return;
(gvi) Neither no examination, audit, claim, assessment, deficiency, or other legal proceeding has been commenced or is pending with regard to any Asset Taxes; and
(vii) none of the Company nor Assets are subject to a tax partnership agreement or are otherwise treated as held in an arrangement requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code; and
(b) with respect to EBC, YLHC, YELP and YPLC, but, with respect to YELP and YPLC, in each case expressly limited to Seller’s Knowledge:
(i) all material Taxes that have become due and payable, taking into account any Subsidiary validly granted extensions, have been timely paid in full, when required to be paid;
(ii) all material Tax Returns with respect to Taxes, which are required to be filed, have been duly and timely filed, and all such Tax Returns are correct and complete in all material respects;
(iii) all Tax withholding and deposit requirements imposed on or with respect to EBC, YLHC, YELP and YPLC have been satisfied in full in all respects;
(iv) there are no Encumbrances for Taxes (including any interest, fine, penalty, or additions to Tax imposed by a Governmental Authority in connection with such Taxes) on any of the Equity Interests or property or other assets of EBC, YLHC, YELP or YPLC, other than Permitted Encumbrances;
(v) none of Sellers, EBC YLHC, YELP or YPLC has received any written notice of any pending claim (that remains outstanding) from any Governmental Authority for assessment of Taxes on EBC, YLHC, YELP or YPLC, and, to Sellers’ Knowledge, no such claim has been made or threatened;
(vi) no claim has ever been made by a Governmental Authority in a jurisdiction where EBC,YLHC, YELP or YPLC do not file Tax Returns (or a particular type of Tax Return) that any of them is or may be subject to taxation in that jurisdiction or required to file a particular type of Tax Return;
(vii) no examination, audit, claim, assessment, deficiency, or other legal proceeding has been commenced or is pending against EBC,YLHC, YELP or YPLC with regard to any Taxes;
(viii) none of EBC, YLHC, YELP or YPLC are a party to or bound by any Tax allocation, sharing or indemnity agreements or arrangements (excluding, for the avoidance of doubt, any commercial agreements or contracts that are not primarily related to Taxes). None of EBC,YLHC, YELP or YPLC (i) has ever been a member of an affiliated group a Consolidated Group (other than a Consolidated Group of corporations within which EMC is the meaning of Section 1504(acommon parent (the “Seller Consolidated Group”)) of the Code filing a combined federal income Tax return or (or any similar provision of non-U.S., state or local Lawii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than the members of the Seller Consolidated Group) under Treasury Regulations § Regulation Section 1.1502-6 (or any similar provision corresponding provisions of non-U.S.state, state local or local Law) foreign Tax law), or as a transferee or successor, or by contract or otherwise, other than the consolidated group of which the Company is currently the parent corporation.;
(hix) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 each of the Code EBC, YLHC and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified YPLC is taxable as a corporation for U.S. federal income tax purposes, and YELP is treated as a partnership for U.S. federal income tax purposes;
(x) none of EBC,YLHC, YELP or YPLC has ever constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement;
(xi) none of EBC, YLHC, YELP or YPLC has engaged in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2);
(xii) none of EBC, YLHC, YELP or YPLC will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning on or after the Closing Date as a result of: (i) an adjustment under either Section 481(a) or Section 482 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax law) by reason of a change in method of accounting or otherwise on or prior to the Closing Date for a taxable period ending on or prior to the Closing Date; (ii) a “closing agreement” 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 prior to the Closing Date; (iii) an intercompany transaction or any excess loss account described in Treasury Regulation under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax law) entered into or created on or prior to the Closing Date; (iv) an installment sale or open transaction disposition made on or prior to the Closing Date; (v) the cash method of accounting or long-term contract method of accounting utilized prior to the Closing Date; or (vi) a prepaid amount received on or prior to the Closing Date;
(xiii) none of EBC, YLHC or YPLC has made any payments, is a party to, or has any liability with respect to, any agreement, contract, arrangement, or plan that could result, separately or in the aggregate, in the actual or deemed payment by either of any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of any state, local or foreign Applicable Law relating to Taxes), or any amount that will not be fully deductible pursuant to Section 162(m) of the Code (or any corresponding or similar provision of any state, local, or foreign Applicable Law relating to Taxes);
(xiv) no assets of EBC, YLHC, YELP or YPLC are required to be treated as owned by another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately before the enactment of the Tax Reform Act of 1986, or are “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code;
(xv) none of EBC, YLHC, YELP or YPLC (A) has agreed to make, or is required to make, or will as a result of the transactions contemplated in this Agreement be required to make, adjustments under Section 481 of the Code, (B) has made any election under Section 341(f) (prior to the repeal thereof) of the Code (or any corresponding or similar provision of state, local or foreign Law relating to Taxes), or (C) has undergone an ownership change for purposes of Section 382 of the Code (or any corresponding or similar provision of state, local or foreign Law relating to Taxes);
(xvi) none of EBC, YLHC, YELP or YPLC has made or rescinded any election relating to Taxes, or, except as may be required by Applicable Law, made any change to any method of reporting income or deductions for Tax purposes from those employed in the preparation of the Tax Returns most recently filed by or on behalf of it; and
(xvii) all transactions between and among EBC, YLHC, YELP, YPLC and their respective Affiliates have been conducted at arm’s-length within the meaning of Section 482 of the Code (or any corresponding or similar provision of state, local or foreign Applicable Law relating to Taxes).
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Par Pacific Holdings, Inc.)
Tax. (ai) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) returns required to have been be filed by by, on behalf of or with respect to to, the Company and each Subsidiary its Subsidiaries have been duly and timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose correct in accordance with the applicable Laws in all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. material respects.
(ii) All Taxes (whether or not shown reflected on such Tax returns) required to be paid by the Company and its Subsidiaries have been duly and timely paid in accordance with the applicable Laws.
(iii) All Taxes required to be withheld by the Company and its Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such purpose in accordance with the applicable Laws.
(iv) The Company and each Subsidiary has paid or accrued as a liability in the Consolidated Financial Statements all Taxes of or required to be paid by it for all taxable periods (or portions thereof) ending before the Closing Date. Since December 31, 2017, except in the ordinary course of business and (other than to the extent there is no past practice with respect to any such transaction or arrangement) as is consistent with past practice, neither the Company nor any Subsidiary has (a) engaged in any transaction that could reasonably be expected to result in any Tax Return) liability for which the Company or any Subsidiary would be liable (whether by reason of any withholding obligation, reduction in any Tax attribute or otherwise), (b) entered into any intercompany loan or intercompany debt arrangement or (c) increased or decreased the balances of any intercompany loan or intercompany debt arrangement. Since the date of the most recent audited Consolidated Financial Statements, the Company has not made, changed or revoked any Tax election, changed any Tax accounting method or Tax accounting period, filed any amended Tax return, filed any Tax return in a manner not consistent with past practice, settled, surrendered or compromised any Tax Claim, or surrendered any right to claim a Tax refund. All information set forth in the audited Consolidated Financial Statements (including the notes thereto) relating to Tax matters is correct and complete.
(v) There are no Taxes for any period of any of the Sellers or any of their respective Affiliates (other than the Group Companies) or direct or indirect owners for which the Company or its Subsidiaries are or could be liable. AV does not own any assets or rights transferred pursuant to the AV Assignment within a business activity (codice attività) registered for value-added tax purposes.
(vi) No Subsidiary has (a) agreed to waive or extend the statute of limitations applicable to the assessment or collection of any Tax that has not yet been either paid or resolved in full or (b) agreed in writing to extend the time within which to file any Tax return of, related to, or that includes the Company or any Subsidiary, which has not been since filed within the prescribed extended period.
(vii) No claim has been made by any Governmental Authority in a jurisdiction where the Company or any Subsidiary has not filed a Tax return that it is or may be liable have been timely paid, except for Taxes the failure of which subject to pay would not have a Material Adverse EffectTax by such jurisdiction. The Company and each Subsidiary its Subsidiaries have set aside complied with all applicable rules regarding transfer pricing, including the execution and maintenance of documentation required to substantiate transfer pricing practices. The transactions contemplated by Paragraph 6.7 (Termination of Intercompany Agreements) and the AV Assignment will not result in any material Tax of the Company or any Subsidiary. For tax purposes, all Terminating Intercompany Agreements were entered into and performed on its books provision reasonably adequate arm’s-length terms and for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyfair market value.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(cviii) Neither the Company nor any Subsidiary (a) is a party to or is bound by or obligated under any claimTax sharing, disputeallocation, auditindemnity or similar agreement or arrangement with any Person (other than any Tax sharing, pending Action allocation, indemnification or proceedinggross-up provisions contained in ordinary course agreements or arrangements disclosed in the VDR the principal purpose of which does not relate to Taxes), nor (b) is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection ever was a member of any affiliated, consolidated, combined, unitary or other group for Tax purposes (other than a group, identified on Section 11.18 of the Sellers Disclosure Letter, of which Green is the common parent), (c) has any liability for Taxes and no claim for the assessment or collection of any Taxes Person (or in connection with previously being, or ceasing to be, a member of any affiliated, consolidated, combined, unitary or other group for Tax purposes), as transferee, successor or otherwise, (d) is or has been asserted against subject to any Tax in any jurisdiction other than its place of incorporation by virtue of having a permanent establishment or other place of business or taxable presence in that jurisdiction or (e) is subject to any closing agreement (or any other final and conclusive agreement), private letter ruling or other written agreement, in each case, with or from a Governmental Authority regarding Taxes or Tax matters.
(ix) Neither in the current taxable year nor in the preceding five (5) taxable years has the Company or any Subsidiary Subsidiaries claimed, utilized or requested exemptions, reliefs or other facilities in relation to Tax that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency could result in a claw back, recapture or addition to Taxesannulment, interest including exemptions, reliefs or penalties facilities for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws Tax relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages reorganizations or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) mergers. Neither the Company nor any Subsidiary has been will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period, or otherwise incur any Tax liability, as a member of an affiliated group of corporations within the meaning of Section 1504(a) result of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Green Carve Out. Neither the Company nor any Subsidiary has engaged in will be required to include any transaction that could give rise to a disclosure obligation item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a “reportable transaction” under Section 6011 result of the Code and Treasury Regulations promulgated thereunder (a) any change in method of accounting for a taxable period (or portion thereof) ending on or before the Closing Date, or (b) any similar provision of non-U.S., state action taken or local Law).
(i) The Company is, and has at all times been, classified as a corporation for transaction entered into on or before the Closing Date. For U.S. federal income tax purposes, the taxable year of each of the Group Companies is the calendar year.
(x) No previous circumstances exist on the basis of which Tax Claims in relation to Company and/or its Subsidiaries can be validly founded or demands for payment can be validly made against the Company and/or its Subsidiaries or Tax proceedings can be commenced validly in relation to the same in any relevant jurisdiction relating to any taxable event that occurred or originated prior to the Closing.
(xi) No Tax Claims are pending against the Company and/or its Subsidiaries and no written notice of any such claim was received by the Company and/or its Subsidiaries as of the date of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Michael Kors Holdings LTD)
Tax. (a) All Except as has not had, and would not reasonably be expected to have, a Sun Material Adverse Effect, individually or in the aggregate:
(i) Each of Sun and the Sun Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose prepared in compliance in all Taxes required to be paid by or respects with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectall applicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(bii) Except where such unpaid Each of Sun and the Sun Subsidiaries has (A) timely withheld and paid to the appropriate Tax would not authority all amounts required to have a Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any employee, there are no unpaid Taxes claimed individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable law relating to be due by the Taxing authority of any jurisdictionwithholding, collection, and the officers remittance of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and (including the dates of such financial statementsinformation reporting requirements).
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company Sun or any Subsidiaryof the Sun Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied There is no audit, proceeding or investigation now pending against or with respect to Sun or any of the Sun Subsidiaries in all material respects with all Applicable Laws relating to the payment and withholding respect of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages any Tax or salaries of employees, Tax asset and neither the Company Sun nor any Subsidiary is liable for of the Sun Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax or Tax asset.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice issued by any Tax authority with respect to any of claim, has ever been made by an authority in a jurisdiction where Sun or the Company Sun Subsidiaries which agreement or a Subsidiary does not file Tax Returns that ruling would be effective after the Company or such Subsidiary is or may be subject to taxation by that jurisdictionClosing Date.
(gvi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Sun or any of the Sun Subsidiaries.
(vii) Neither the Company Sun nor any Sun Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(viii) During the two (2) year period ending on the date of this Agreement, neither Sun nor any Sun Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Sun nor any Sun Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (other than a group the common parent of which was Sun or any similar provision of non-U.S., state Sun Subsidiary) or local Law(ii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than Sun or any Sun Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationas a transferee or successor.
(hx) In the past three (3) years, no written claims have ever been made by any Tax authority in a jurisdiction where Sun or any Sun Subsidiary does not file a Tax Return that Sun or such Sun Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither the Company Sun nor any Sun Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are Sun or any similar provision of non-U.S., state or local Lawother Sun Subsidiaries).
(ixii) The Company Sun is, and has at all times always been, classified a per se corporation as defined in Treasury Regulations Section 301.7701-2(b)(8)(i). Section 4.18(a)(xii) of the Sun Disclosure Schedule sets forth all elections made by Sun or any Sun Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Each of Sun and the Sun Subsidiaries is, and has been since formation, a Tax resident only in is jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation. Sun is, and has been since formation, treated as a foreign corporation for U.S. federal income tax purposes.
(xiv) Neither Sun nor any of the Sun Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Sun SEC Documents reflect an adequate reserve for all Taxes payable by Sun and the Sun Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(b) Neither Sun nor any Sun Subsidiary (i) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code; or (ii) was created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a).
(c) Neither Sun nor any Sun Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code or (iii) a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Stratasys Ltd.)
Tax. (a) All Except as has not had, and would not reasonably be expected to have, an Ironman Material Adverse Effect, individually or in the aggregate:
(i) Each of Ironman and the Ironman Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose prepared in compliance in all Taxes required to be paid by or respects with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectall applicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(bii) Except where such unpaid Each of Ironman and the Ironman Subsidiaries has (A) timely withheld and paid to the appropriate Tax would not authority all amounts required to have a Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any employee, there are no unpaid Taxes claimed individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable law relating to be due by the Taxing authority of any jurisdictionwithholding, collection, and the officers remittance of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and (including the dates of such financial statementsinformation reporting requirements).
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company Ironman or any Subsidiaryof the Ironman Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied There is no audit, proceeding or investigation now pending against or with respect to Ironman or any of the Ironman Subsidiaries in all material respects with all Applicable Laws relating to the payment and withholding respect of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages any Tax or salaries of employees, Tax asset and neither the Company Ironman nor any Subsidiary is liable for of the Ironman Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax or Tax asset.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice of claimissued by any Tax authority with respect to any of, has ever been made by an authority in a jurisdiction where Ironman or the Company Ironman Subsidiaries which agreement or a Subsidiary does not file Tax Returns that ruling would be effective after the Company or such Subsidiary is or may be subject to taxation by that jurisdictionClosing Date.
(gvi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Ironman or any of the Ironman Subsidiaries.
(vii) Neither the Company Ironman nor any Ironman Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(viii) During the two (2) year period ending on the date of this Agreement, neither Ironman nor any Ironman Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Ironman nor any Ironman Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (other than a group the common parent of which was Ironman or any similar provision of non-U.S., state Ironman Subsidiary) or local Law(ii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than Ironman or any Ironman Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationas a transferee or successor.
(hx) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Ironman or any Ironman Subsidiary does not file a Tax Return that Ironman or such Ironman Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither the Company Ironman nor any Ironman Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a commercial Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are Ironman or any similar provision of non-U.S., state or local Lawother Ironman Subsidiaries).
(ixii) The Company Ironman is, and has at all times always been, classified treated as a corporation for U.S. federal income tax purposes. Section 3.17(a)(xii) of the Ironman Disclosure Schedule sets forth all elections made by Ironman or any Ironman Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Neither Ironman nor any of the Ironman Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Ironman SEC Documents reflect an adequate reserve for all Taxes payable by I▇▇▇▇▇▇ and the Ironman Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Ironman and each Ironman Subsidiary is a Tax resident only in its jurisdiction of formation. Ironman and each Ironman Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Ironman’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Ironman, no more than 25% of the total number of all issued and outstanding shares of Ironman, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Ironman Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Ironman Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code. Each non-U.S. Ironman Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Ironman nor any Ironman Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code or (iii) a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Ironman Common Stock (i) were issued by Ironman (or any current or former Ironman Affiliate) with an exercise price that was less than the fair value of the underlying Ironman Common Stock (or Subsidiary shares) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Tax. (a) All The Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that the Company was required to have been filed. All Tax Returns filed by or with respect to the Company are true, correct and each Subsidiary have been timely filed complete in all respects. All Taxes owed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes or required to be paid remitted) by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown or required to be shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to which such Tax Returns applyappropriate Governmental Body.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no No claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. To the Company's Knowledge, there are no Encumbrances on any of the assets of the Company that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.15 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which the Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all Tax rulings and similar determinations requested or received by the Company or Seller, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material Tax elections that were made by or on behalf of the Company. The Company has delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, the Company during the six-year period ending on the date hereof.
(gc) Neither the The Company nor any Subsidiary (i) has never been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code Affiliated Group filing a combined consolidated federal income Tax tax return (other than a group the common parent of which was the Company), (ii) has never been a party to any Tax sharing, indemnification or any similar provision of non-U.S.allocation agreement, state or local Law) nor does the Company or owe any Subsidiary of the Company amount under any such agreement, (iii) does not have any liability for Taxes of any other Person person under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local or local Law) foreign law, and including any arrangement for group relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract, or otherwise, and (iv) has never been a party to any joint venture, partnership or other than agreement or arrangement that could be treated as a partnership for Tax purposes.
(d) The Company has never constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for a tax-free treatment under Code Section 355.
(e) To the consolidated group of which Company's Knowledge, the Company has withheld or collected, and timely paid to the appropriate Governmental Body, all Taxes required to have been withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to any employee, customer, creditor, stockholder, independent contractor, or other third party.
(f) To the Company's Knowledge, there is no basis for any Governmental Body to, and neither Sellers nor any director or officer (or employee responsible for Tax matters) of the Company expects any Governmental Body to, assess any additional Taxes for any period. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted (or to be paid, collected or permitted) by the Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any of the Sellers or Company has Knowledge. The Company has not waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of the Company has been requested, granted or currently is in effect.
(g) The unpaid Taxes of the parent corporationCompany (i) did not, as of the Interim Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Statement (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns. Since the Interim Date, the Company has not incurred any Liability for Taxes outside the ordinary course of business.
(h) Neither the The Company nor any Subsidiary has engaged not, directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) that could give rise to a disclosure obligation as would constitute (i) a “reportable transaction” under or “listed transaction” as defined in Treasury Regulation Section 6011 of 1.6011-4 or (ii) a “tax shelter” as defined in Code Section 6111 and the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)thereunder.
(i) The Company iswill not 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, including as a result of: (i) a “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date; (ii) change in method of accounting under Code Section 481(c); (iii) deferred intercompany gain or excess loss account under Treasury Regulations under Code Section 1502; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(j) Schedule 4.15 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which the Company is a party that is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A and the Treasury Regulations thereunder. Each such nonqualified deferred compensation plan (i) complies, and is operated and administered in accordance, with the requirements of Code Section 409A, the Treasury Regulations thereunder and any other IRS guidance issued thereunder and (ii) has at all times been, classified as a corporation for U.S. federal income tax purposesbeen operated and administered in good faith compliance with Code Section 409A from the period beginning on the adoption of such nonqualified deferred compensation plan.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Alpine 4 Automotive Technologies Ltd.)
Tax. (a) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary Transferred Assets or the Assumed Liabilities have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose complete in all respects. All material Taxes required to be paid by or with respect to the Company and each Subsidiary for Transferred Assets or the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes Assumed Liabilities (whether or not shown as due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes paid in full. Neither Seller is the failure beneficiary of any extension of time within which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent file any Tax Return with respect to the periods to which such Tax Returns applyTransferred Assets or the Assumed Liabilities.
(b) Except where No claim has ever been made by a Governmental Authority in a jurisdiction in which either Seller does not file a Tax Return of a particular type that any Seller is or may be subject to Tax of such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed type by that jurisdiction with respect to be due by the Taxing authority of any jurisdiction, Transferred Assets and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsAssumed Liabilities.
(c) Neither There are no liens for Taxes on any of the Company nor any Subsidiary is a party to any claimTransferred Assets (other than liens for Taxes not yet due and payable or being contested in good faith by appropriate procedures, disputeand, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authorityin each case, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has which adequate reserves have been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidspecifically established).
(d) No lien with Proceeding in respect of Taxes is in progress or pending that relates to Taxes the Transferred Assets or the Assumed Liabilities, and no such Proceeding has been filed and no deficiency or addition threatened against Sellers in writing (or, to Taxesthe Knowledge of Sellers, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiaryotherwise).
(e) The Company and each Subsidiary has No deficiencies for any Taxes have been proposed, asserted, threatened or assessed against by any Taxing Authority with respect to the Transferred Assets or the Assumed Liabilities that have not been paid, resolved or settled in full.
(f) Sellers have complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, have duly and has timely withheld and paid over to the appropriate Taxing Authority all amounts required by Applicable Laws to be so withheld and paid from under all such Laws, in each case, to the wages extent related to the Transferred Assets or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionAssumed Liabilities.
(g) Neither Sellers have collected all material sales and use taxes required to be collected, and has remitted such amounts to the Company nor any Subsidiary has appropriate Taxing Authority, or have been a member of an affiliated group of corporations within furnished properly completed exemption certificates, to the meaning of Section 1504(a) of extent relating to the Code filing a combined federal income Tax return (Transferred Assets or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationAssumed Liabilities.
(h) Neither Sellers have complied in all material respects with all information reporting and record-keeping requirements with respect to the Company nor Transferred Assets and the Assumed Liabilities required by any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (U.S. federal, state, local or any similar provision of non-U.S., state or local U.S. Tax Law).
(i) The Company is, and has at all times been, classified Sellers have no material Liability under any escheat or abandoned or unclaimed property laws with respect to the Transferred Assets.
(j) No Seller (or other Person treated as selling assets hereunder) is not a corporation for U.S. federal income tax purposes“United States Person” within the meaning of Code Section 7701(a)(30).
Appears in 1 contract
Tax. (a1) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements A representation with respect to Taxes contained in this section shall be deemed to be accurate unless an inaccuracy contained therein would, individually or in the aggregate, have a material adverse effect on CLFC.
(collectively, “2) CLFC and each of its Subsidiaries has duly and timely filed all Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it and all such Tax Returns are complete and accurate correct in all material respects. CLFC and disclose each of its Subsidiaries has paid all Taxes required to be paid which are due and payable by or it, other than those which are being contested in good faith and in respect of which adequate reserves have been provided in the most recently published financial statements of CLFC. CLFC's most recently published consolidated financial statements contain adequate provision, in accordance with Canadian generally accepted accounting principles, for Taxes payable in respect of each period covered by such financial statements and all prior periods to the Company extent such Taxes have not been paid, whether or not due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown as being due on any Tax Return) Returns, and, since the date of such statements, neither CLFC nor any of its Subsidiaries has incurred a liability for which a material amount of Taxes otherwise than in the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure ordinary course of which to pay would not have a Material Adverse Effectbusiness. The Company CLFC and each Subsidiary have set aside on of its Subsidiaries has made adequate provision, in accordance with Canadian generally accepted accounting principles, in its books provision reasonably adequate and records for the payment any amount of all Taxes material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have CLFC on a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority consolidated basis and accruing in respect of any jurisdiction, and accounting period ending after the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of period covered by such financial statements.
(c3) Neither There are no actions, suits, proceedings, investigations, audits or claims made (or, to the Company nor knowledge of CLFC, threatened) against CLFC or any Subsidiary of its Subsidiaries in respect of Taxes or any matters under discussion with any Regulatory Authority relating to Taxes asserted by any such authority, in each case, which may have a material adverse effect on CLFC, net of provisions in respect thereof in the most recent published financial statements of CLFC. There have been no waivers of statutes of limitations or objections to any assessments or reassessments involving Taxes given, filed or requested with respect to CLFC or any of its Subsidiaries except in circumstances where the Taxes under objection have been paid or adequate provision for the payment thereof has been made. All liabilities of CLFC and the CLFC Material Subsidiaries for federal and provincial income and capital taxes have been assessed by the Canada Customs and Revenue Agency and, where applicable, Canadian provincial, tax authorities for all fiscal years up to and including the fiscal year ended December 31, 2001.
(4) None of CLFC or any of its Subsidiaries (i) has made an election to be treated as a "consenting corporation" under subsection 341(f) of the United States Internal Revenue Code of 1986 (the "U.S. Tax Code") or (ii) is a party to any claim, dispute, audit, pending Action Tax sharing or proceeding, nor is other similar agreement or arrangement or any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection Tax indemnification agreement of any Taxes and no claim for the assessment or collection of nature with any Taxes has been asserted against the Company other person (other than in agreements with CLFC or any Subsidiary that of its Subsidiaries) pursuant to which CLFC or any of its Subsidiaries has or could have any material liabilities in respect of Taxes. CLFC has not been settled with all amounts due having been paidmade an election under subsection 897(i) of the U.S. Tax Code to be treated as a domestic corporation for purposes of section 897, 1445 and 6039C of the U.S. Tax Code.
(d5) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company CLFC and each Subsidiary of its Subsidiaries has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxescollected, including sales and use Taxes, and has withheld and paid over remitted all amounts Taxes required to be collected, withheld and remitted by it within the time required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the aggregate:
(i) Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose prepared in compliance in all Taxes required to be paid by or respects with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectall applicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(bii) Except where such unpaid Each of Trident and the Trident Subsidiaries has (A) timely withheld and paid to the appropriate Tax would not authority all amounts required to have a Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any employee, there are no unpaid Taxes claimed individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable law relating to be due by the Taxing authority of any jurisdictionwithholding, collection, and the officers remittance of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and (including the dates of such financial statementsinformation reporting requirements).
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company Trident or any Subsidiaryof the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in all material respects with all Applicable Laws relating to the payment and withholding respect of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages any Tax or salaries of employees, Tax asset and neither the Company Trident nor any Subsidiary is liable for of the Trident Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax or Tax asset.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice of claimissued by any Tax authority with respect to any of, has ever been made by an authority in a jurisdiction where Trident or the Company Trident Subsidiaries which agreement or a Subsidiary does not file Tax Returns that ruling would be effective after the Company or such Subsidiary is or may be subject to taxation by that jurisdictionClosing Date.
(gvi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or any of the Trident Subsidiaries.
(vii) Neither the Company Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(viii) During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (other than a group the common parent of which was Trident or any similar provision of non-U.S., state Trident Subsidiary) or local Law(ii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than Trident or any Trident Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationas a transferee or successor.
(hx) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither the Company Trident nor any Trident Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a commercial Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are Trident or any similar provision of non-U.S., state or local Lawother Trident Subsidiaries).
(ixii) The Company Trident is, and has at all times always been, classified treated as a corporation for U.S. federal income tax purposes. Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Trident or any Trident Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as a Tax resident of any jurisdiction other than Israel following the Sun Merger.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the fair value of the underlying Trident Common Stock (or any shares of any Trident Subsidiary) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax Each Group Company has filed with the appropriate authorities all tax returns and other declarations and statements with submissions in respect to of Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns as are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company filed. Such filings were (i) duly and each Subsidiary for the periods covered therebytimely filed, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes and (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paidii), except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company when filed, true, correct, and each Subsidiary have set aside on its books provision reasonably adequate for the payment of complete in all material Taxes for periods subsequent to the periods to which such Tax Returns applyrespects.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no No Group Company has liabilities or penalties (whether actual or contingent) for unpaid Taxes claimed pertaining to be due by the Taxing authority period prior to the Signing Date or the Closing Date (as applicable), except for (i) Taxes accounted for in the Accounts or (ii) any Taxes pertaining to the period after the Accounts Date incurred in the Ordinary Course of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsBusiness.
(c) Neither All Taxes due for payment, or required to be withheld on behalf of another Person, by a Group Company have been timely paid in full or withheld (as applicable). Each Group Company is in compliance with all applicable information reporting and withholding requirements under all applicable Tax Laws.
(d) There are no Tax liens on the assets of any Group Company nor other than statutory liens for Taxes not yet past due or for Taxes the validity of which is being contested in good faith by the appropriate proceedings and for which adequate reserves have been established.
(e) No Group Company has been given or granted any Subsidiary is a party to any claim, dispute, audit, pending Action waiver or proceeding, nor is any such claim, dispute, Action or proceeding threatened extension by any Taxing authority, for tax authority of any period of limitation governing the time of assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, Group Company is involved in or subject to any audit relating to Taxes and no Group Company has received any written notice of claimany threatened audit relating to Taxes.
(g) For Tax purposes, each Group Company is and has ever been resident only in the jurisdiction in which it has been incorporated or established. No claim has been made by an any governmental authority in a jurisdiction where the Group Company or a Subsidiary does not file a Tax Returns return that the Group Company or such Subsidiary is or may be subject to taxation by by, or required to file any Tax return in, that jurisdiction.
(g) Neither . No Group Company has a “permanent establishment” as such term is defined under any applicable Laws, including in any applicable Tax treaty or convention between the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes United States and such tax jurisdiction of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationGroup Company.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Except as has not had, and would not reasonably be expected to have, a Sun Material Adverse Effect, individually or in the aggregate:
(i) Each of Sun and the Sun Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) it, and all such Tax Returns are true, complete and accurate and disclose prepared in compliance in all Taxes required to be paid by or respects with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectall applicable Laws. All Taxes (whether or not shown to be due on any such Tax ReturnReturns) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(bii) Except where such unpaid Each of Sun and the Sun Subsidiaries has (A) timely withheld and paid to the appropriate Tax would not authority all amounts required to have a Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any employee, there are no unpaid Taxes claimed individual independent contractor, other service providers, equity interest holder or other third-party and (B) otherwise complied with all applicable law relating to be due by the Taxing authority of any jurisdictionwithholding, collection, and the officers remittance of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and (including the dates of such financial statementsinformation reporting requirements).
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary Taxes has been proposed, asserted or assessed by a Governmental Entity against the Company Sun or any Subsidiaryof the Sun Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(eiv) The Company and each Subsidiary has complied There is no audit, proceeding or investigation now pending against or with respect to Sun or any of the Sun Subsidiaries in all material respects with all Applicable Laws relating to the payment and withholding respect of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages any Tax or salaries of employees, Tax asset and neither the Company Sun nor any Subsidiary is liable for of the Sun Subsidiaries has received any Taxes for failure written notice of any proposed audit, proceeding or investigation with regard to comply with any such Applicable LawsTax or Tax asset.
(fv) No claim“closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or notice issued by any Tax authority with respect to any of claim, has ever been made by an authority in a jurisdiction where Sun or the Company Sun Subsidiaries which agreement or a Subsidiary does not file Tax Returns that ruling would be effective after the Company or such Subsidiary is or may be subject to taxation by that jurisdictionClosing Date.
(gvi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Sun or any of the Sun Subsidiaries.
(vii) Neither the Company Sun nor any Sun Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “reportable transaction” or that could give rise to any list maintenance obligation under Sections 6011, 6111, or 6112 of the Code (or any similar provision under any state or local Law) or the Treasury Regulations thereunder.
(viii) During the two (2) year period ending on the date Sun countersigns this Agreement, neither Sun nor any Sun Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(ix) Neither Sun nor any Sun Subsidiary (i) has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income consolidated, combined, affiliated, unitary or similar Tax return Return (other than a group the common parent of which was Sun or any similar provision of non-U.S., state Sun Subsidiary) or local Law(ii) nor does the Company or any Subsidiary of the Company have has any liability for the Taxes of any Person (other Person than Sun or any Sun Subsidiary) under Treasury Regulations § Section 1.1502-6 (or any similar provision of state, local or non-U.S., state or local U.S. Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationas a transferee or successor.
(hx) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Sun or any Sun Subsidiary does not file a Tax Return that Sun or such Sun Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither the Company Sun nor any Sun Subsidiary has engaged is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in any transaction a commercial Contract entered into in the ordinary course of business that could give rise is not primarily related to a disclosure obligation as a “reportable transaction” under Section 6011 of Taxes, or (ii) one the Code and Treasury Regulations promulgated thereunder (only parties to which are Sun or any similar provision of non-U.S., state or local Lawother Sun Subsidiaries).
(ixii) The Company Sun is, and has at all times always been, classified treated as a corporation for U.S. federal income tax purposes. Section 4.18(a)(xii) of the Sun Disclosure Schedule sets forth all elections made by Sun or any Sun Subsidiary pursuant to Treasury Regulations Section 301.7701-3.
(xiii) Each of Sun and the Sun Subsidiaries is, and has been since formation, a Tax resident only in is jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation. Sun is, and has been since formation, treated as a foreign corporation for U.S. federal income tax purposes.
(xiv) Neither Sun nor any of the Sun Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xv) The most recent financial statements contained in the Sun SEC Documents reflect an adequate reserve for all Taxes payable by Sun and the Sun Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(b) Neither Sun nor any Sun Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to United States Treasury Regulations Section 301.7701-5(a) (each, a “non-U.S. Sun Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code.
(c) Neither Sun nor any Sun Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as a Tax resident of any jurisdiction other than Israel following the Mergers.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Sun Ordinary Shares (i) were issued by Sun (or any current or former Sun Affiliate) with an exercise price that was less than the fair value of the underlying Sun Ordinary Shares (or any shares of any Sun Subsidiary) for which the options or warrants were exercisable at the time such options or warrants were issued, (ii) are, or have ever been, properly treated as stock for U.S. federal income tax purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be economically compelled to exercise such warrants.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to on behalf of the Company and each Subsidiary have been duly filed on a timely filed (taking into account any extensions) basis and all such Tax Returns are were, when filed, true, complete and accurate correct. All Taxes shown to be payable on such Tax Returns or on subsequent assessments with respect thereto, and disclose all payments of estimated Taxes required to be paid made by or on behalf of the Company under Section 6655 of the Code or comparable provisions of state, local or foreign law, have been paid in full on a timely basis, and no other Taxes are payable by the Company with respect to the Company and each Subsidiary for the items or periods covered thereby, except for by such Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any such Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse EffectReturns). The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts Taxes required by Applicable Laws to be have been withheld and paid from the wages or salaries of employeesover, and neither complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. The Company has received, from each employee who holds stock that is subject to a substantial risk of forfeiture as of the date hereof, a copy of the election(s) made under Section 83(b) of the Code with respect to all such shares. There are no liens on any of the assets of the Company nor with respect to Taxes, other than liens for Taxes not yet due and payable. The Company has not been at any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been time a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a consolidated, combined federal or unitary income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, franchise tax returns other than the consolidated as a member of a group of which the Company is currently the ultimate parent corporationfor a period for which the statute of limitations for any Tax potentially applicable as a result of such membership has not expired.
(hb) Neither The amount of the Company’s liabilities for unpaid Taxes for all periods through January 31, 2008 does not, in the aggregate, exceed the amount of the liability accruals for Taxes reflected on the Company nor any Subsidiary has engaged Financials, and the Company Financials properly accrue in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 accordance with GAAP all liabilities for Taxes of the Code Company payable after January 31, 2008 attributable to transactions and Treasury Regulations promulgated thereunder events occurring prior to such date. No liability for Taxes of the Company has been incurred or material amount of taxable income has been realized (or any similar provision prior to and including the Closing Date will be incurred or realized) after January 31, 2008 other than in the ordinary course of non-U.S., state or local Law)business.
(c) Acquirer has been furnished by the Company true and complete copies of (i) all income tax audit reports, statements of deficiencies, closing or other agreements received by or on behalf of the Company relating to Taxes, and (ii) all federal, state and foreign income or franchise tax returns and state sales and use Tax Returns for or including the Company for 2004, 2005, 2006, 2007 and to the date hereof for 2008.
(d) No audit of the Tax Returns of or including the Company by a government or taxing authority is in process, threatened or, to the Company’s Knowledge, pending (either in writing or orally, formally or informally). No deficiencies exist or have been asserted in writing with respect to Taxes of the Company, and the Company has not received written notice that it has not filed a Return or paid Taxes required to be filed or paid. The Company is not a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened in writing against the Company or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Tax Returns of the Company.
(e) The Company isis not (nor has it ever been) a party to any tax sharing agreement. Since inception, and the Company has at all times been, classified as not been a distributing corporation for U.S. federal income tax purposesor a controlled corporation in a transaction described in Section 355(a) of the Code.
Appears in 1 contract
Tax. (a) All The Company has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that the Company was required to have been filed. All Tax Returns filed by or with respect to the Company are true, correct and each Subsidiary have been timely filed complete in all respects. All Taxes owed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes or required to be paid remitted) by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown or required to be shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to which such Tax Returns applyappropriate Governmental Body.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no No claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. To the Company's Knowledge, there are no Encumbrances on any of the assets of the Company that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.15 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which the Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all Tax rulings and similar determinations requested or received by the Company or Seller, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material Tax elections that were made by or on behalf of the Company. The Company has delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, the Company during the six-year period ending on the date hereof.
(gc) Neither the The Company nor any Subsidiary (i) has never been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code Affiliated Group filing a combined consolidated federal income Tax tax return (other than a group the common parent of which was the Company), (ii) has never been a party to any Tax sharing, indemnification or any similar provision of non-U.S.allocation agreement, state or local Law) nor does the Company or owe any Subsidiary of the Company amount under any such agreement, (iii) does not have any liability for Taxes of any other Person person under Treasury Regulations Treas. Reg. § 1.1502-6 (or any similar provision of non-U.S.state, state local or local Law) foreign law, and including any arrangement for group relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract, or otherwise, and (iv) has never been a party to any joint venture, partnership or other than agreement or arrangement that could be treated as a partnership for Tax purposes.
(d) The Company has never constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for a tax-free treatment under Code Section 355.
(e) To the consolidated group of which Company's Knowledge, the Company has withheld or collected, and timely paid to the appropriate Governmental Body, all Taxes required to have been withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to any employee, customer, creditor, stockholder, independent contractor, or other third party.
(f) To the Company's Knowledge, there is no basis for any Governmental Body to, and neither Seller nor any director or officer (or employee responsible for Tax matters) of the Company expects any Governmental Body to, assess any additional Taxes for any period. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted (or to be paid, collected or permitted) by the Company either (vii) claimed or raised by any Governmental Body in writing or (viii) as to which any of the Seller or Company has Knowledge. The Company has not waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of the Company has been requested, granted or currently is in effect.
(g) The unpaid Taxes of the parent corporationCompany (ix) did not, as of the Interim Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Statement (rather than in any notes thereto) and (x) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns. Since the Interim Date, the Company has not incurred any Liability for Taxes outside the ordinary course of business.
(h) Neither the The Company nor any Subsidiary has engaged not, directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) that could give rise to a disclosure obligation as would constitute (xi) a “reportable transaction” under or “listed transaction” as defined in Treasury Regulation Section 6011 of 1.6011-4 or (xii) a “tax shelter” as defined in Code Section 6111 and the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)thereunder.
(i) The Company iswill not 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, including as a result of: (i) a “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date; (ii) change in method of accounting under Code Section 481(c); (iii) deferred intercompany gain or excess loss account under Treasury Regulations under Code Section 1502; (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(j) Schedule 4.15 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which the Company is a party that is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A and the Treasury Regulations thereunder. Each such nonqualified deferred compensation plan (i) complies, and is operated and administered in accordance, with the requirements of Code Section 409A, the Treasury Regulations thereunder and any other IRS guidance issued thereunder and (ii) has at all times been, classified as a corporation for U.S. federal income tax purposesbeen operated and administered in good faith compliance with Code Section 409A from the period beginning on the adoption of such nonqualified deferred compensation plan.
Appears in 1 contract
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes SPAC: (collectively, “Tax Returns”i) required to have been filed by or with respect to the Company and each Subsidiary have been timely has filed (taking into account any extensionsextension of time within which to file) all material Tax Returns required to be filed by it, and all such filed Tax Returns are complete and accurate and disclose in all Taxes required to be material respects; (ii) has timely paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All all material Taxes (whether or not shown as due) on such filed Tax Returns and any other material Taxes that SPAC is otherwise obligated to pay (taking into account any extension of time to pay such Taxes); (iii) with respect to all material Tax ReturnReturns filed by it, has not waived any statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency; and (iv) does not have any deficiency, audit, examination, investigation or other proceeding in respect of material Taxes or Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for assessments remains open. All material Taxes of SPAC which are not yet due and payable have been (A) for which periods covered by the Company or any Subsidiary may be liable have been timely paidSPAC Financial Statements, except for Taxes adequately accrued and reserved on the failure of which to pay would not have a Material Adverse Effect. The Company SPAC Financial Statements in accordance with GAAP and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes (B) for periods subsequent to not covered by the periods to which such Tax Returns applySPAC Financial Statements, accrued on the books and records of SPAC, in each case as of the date of this Agreement.
(b) Except where such unpaid Tax would SPAC is not a party to, is not bound by and does not have a Material Adverse Effectany obligation under any Tax sharing agreement, there are no unpaid Taxes claimed to be due by Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the Taxing authority sharing or ceding of any jurisdictioncredits or losses), and the officers does not have any potential liability or obligation to any Person as a result of the Company and each Subsidiary know of no basis for or pursuant to any such claim. The provisions for Taxes payableagreement, if anycontract, shown on arrangement or commitment other than an agreement, contract, arrangement or commitment entered into in the financial statements filed with Ordinary Course the SEC Documents are sufficient for all accrued and unpaid primary purpose of which does not relate to Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither SPAC has withheld and paid to the Company nor any Subsidiary is a party appropriate taxing authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any claimcurrent or former employee, disputeindependent contractor, auditcreditor, pending Action shareholder or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes other person and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws applicable Laws, rules and regulations relating to the payment withholding and withholding remittance and related reporting requirements with respect to such Taxes.
(d) SPAC has not been a member of Taxesan affiliated, including sales and use Taxesconsolidated, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages combined or salaries unitary group for U.S. federal, state, local or non-U.S. Tax purposes.
(e) SPAC does not have a request for a material ruling in respect of employees, and neither the Company nor Taxes pending with any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawstaxing authority.
(f) No claim, There are no material Tax liens upon any assets of SPAC except for Permitted Liens.
(g) SPAC has not: (i) received written notice from a non-U.S. taxing authority that it has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized or (ii) received written notice of claim, has ever been made by an authority in from a jurisdiction where the Company or a Subsidiary it does not file Tax Returns that the Company or such Subsidiary it is or may be subject to taxation by Tax in that jurisdiction.
(g) Neither the Company nor . SPAC is not subject to Tax in any Subsidiary has been country other than its country of incorporation, organization or formation or by virtue of having employees, a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwisepermanent establishment, other than the consolidated group place of which the Company is currently the parent corporationbusiness or similar presence in that country.
(h) Neither the Company nor any Subsidiary SPAC has engaged not participated in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 within the meaning of either subsection 237.3(1) of the Code and Tax Act or a “listed transaction” within the meaning of Treasury Regulations promulgated thereunder Regulation 1.6011-4(b)(2) (or any corresponding or similar provision of state, local or non-U.S., state or local U.S. Law).
(i) The Company isSPAC has not taken or agreed to take any action, and has at all times beennor does it intend to or plan to take any action, classified as a corporation or have any Knowledge of any fact or circumstance, that could reasonably be expected to prevent the Transactions from qualifying for U.S. federal income tax purposesthe Intended Tax Treatment; provided, that the foregoing representation will not prevent SPAC from taking any actions required by this Agreement or any Ancillary Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. III)
Tax. (ai) All Parentco and each of its Subsidiaries has prepared and filed when due with each relevant Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all on their behalf. All such Tax Returns are correct and complete in all relevant respects, and accurate no material fact has been omitted therefrom.
(ii) Parentco and disclose each of its Subsidiaries has paid in full and when due all Taxes Taxes, including instalments or prepayments of Taxes, required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (it whether or not shown on any Tax Return) for which the Company Return or assessed or reassessed by any Subsidiary may be liable have been timely paidrelevant Governmental Body, except for Taxes the failure and has paid all assessments and reassessments it has received in respect of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyTaxes.
(biii) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid The Financial Statements contain adequate provision in accordance with GAAP for all Taxes claimed to be due payable by the Taxing authority of any jurisdiction, and the officers of the Company Parentco and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for its Subsidiaries in respect of each period covered thereby and all accrued and unpaid Taxesprior periods, whether or not disputed, assessed and for all periods whether or not shown to and including the dates of such financial statementsbe due on any Tax Returns.
(civ) No deficiencies or assessments or reassessments for any Taxes have been proposed, asserted or assessed in writing by any Governmental Body against Parentco or any Subsidiary that are still pending. There are no matters (including any Tax Return filed by Parentco or any Subsidiary) under discussion, audit or appeal with or by any Governmental Body, and there are no proceedings, claims, demands, investigations, or actions now pending or, to Parentco’s knowledge, threatened against any of Parentco or any Subsidiary in respect to Taxes.
(v) Parentco and each of its Subsidiaries has duly and timely withheld and collected all amounts required by Applicable Law to be withheld or collected by it on account of Taxes (including Taxes and other amounts required to be withheld by it in respect of any amount paid or credited by it to or for the account or benefit of any Person, including any employee, officer or director and any Person not resident in Canada for purposes of the Tax Act) and has duly remitted to the appropriate Governmental Body within the time prescribed under any Applicable Law all such amounts and other amounts required to be remitted by it.
(vi) There are no outstanding agreements, arrangements, waivers or objections extending the statutory period or providing for an extension of time with respect to the assessment or reassessment of Taxes or the filing of any Tax Return by, or any payment of Taxes by, Parentco or any of its Subsidiaries, nor is there any outstanding request for any such agreement, waiver, objection or arrangement. Neither Parentco nor any Subsidiary has made any elections, designations or similar filings with respect to Taxes or entered into any agreement in respect of Taxes or Tax Returns that have an effect for any period ending after the Effective Date and which have not been disclosed to Spinco. Neither Parentco nor any Subsidiary has requested, received or entered into any advance Tax rulings or advance pricing agreements from or with any Governmental Body.
(vii) Neither the Company Parentco nor any Subsidiary is a party to, bound by, or has any obligation under, any Tax allocation or sharing agreement or similar contract or arrangement or any agreement that obligates it to make any claimpayment computed by reference to the Taxes, dispute, audit, pending Action taxable income or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection taxable losses of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or other Person. Neither Parentco nor any Subsidiary has been proposed, asserted or assessed against the Company or acquired property from any Subsidiary.
(e) The Company and each Subsidiary has complied Person in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is circumstances where it became liable for any Taxes of such Person. Neither Parentco nor any Subsidiary has entered into any agreement with, or provided any undertaking to, any Person pursuant to which it has assumed liability for failure to comply with the payment of Taxes owing by such Applicable LawsPerson.
(fviii) No claim, or notice of claim, claim has ever been made by an authority a Governmental Body in a jurisdiction where the Company Parentco or a any Subsidiary does not file Tax Returns that the Company or such Subsidiary it is or may be subject to taxation by the imposition of any Tax by, or required to file Tax Returns in, that jurisdiction.
(gix) The terms and conditions made or imposed in respect of every transaction (or series of transactions), other than the interest free loans made from time to time to a Subsidiary to fund business operations, between Parentco or any Subsidiary and any Person that is not dealing at arm’s length with such entity, for purposes of the Tax Act or any other Applicable Law, do not differ from those that would have been made between persons dealing at arm’s length for purposes of the Tax Act. Contemporaneous documentation substantiating the transfer pricing practices and methodology has been executed and maintained.
(x) Neither the Company Parentco nor any Subsidiary has been a member of claimed any reserves (other than an affiliated group of corporations within the meaning of Section 1504(aallowance for doubtful accounts) for purposes of the Code filing Tax Act (or any other Applicable Law) for the most recent Tax or fiscal period ending prior to the date of this Agreement or for any Tax period ending as a combined federal income result of the completion of the transactions contemplated in this Agreement.
(xi) Since the date of the most recent Financial Statements, neither Parentco nor any Subsidiary has incurred any liability for Taxes or engaged in any transaction or event that would result in any liability for Taxes, other than in the Ordinary Course.
(xii) There are no circumstances which exist and are expected to result in, or have existed and resulted in, the application of any of Sections 17, 79, 79.1 or 80 to 80.04, inclusive, of the Tax return Act (or any similar provision of non-U.S., state or local under any Applicable Law) nor does the Company to Parentco or any Subsidiary. Neither Parentco nor any Subsidiary has made any payment or is obligated to make any payment that may not be deductible by virtue of Section 67 of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Tax Act (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor under any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Applicable Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Arrangement Agreement
Tax. (a) All Tax (as defined below) returns, Tax statements, reports, information returns, declarations of and other forms and documents (including without limitation estimated Tax returns and other declarations reports and statements information returns and reports) required to be filed with any Tax Authority (as defined below) with respect to Taxes any Taxable (as defined below) period ending on or before the Closing, by or on behalf of the Seller, Quadrem Group or any Quadrem Subsidiary (collectively, “Tax Returns” and individually, a “Tax Return”) required to ), have been or will be completed and filed by or with respect when due (including any extensions of such due date). Except to the Company and each Subsidiary have extent that a reserve for Taxes has been timely filed (taking into account any extensions) and established on the Reference Balance Sheet, all such Tax Returns are true, complete and accurate correct and disclose were prepared in substantial compliance with all applicable Laws. The Quadrem Group and each Quadrem Subsidiary has paid all Taxes required to be paid by or with respect to the Company due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes owing (whether or not shown on any Tax Return) for which all periods through the Company or any Subsidiary may be liable date of the Reference Balance Sheet, except to the extent reserves for Taxes have been timely paid, except established on the Reference Balance Sheet. The Interim Financial Statements (i) fully accrue all actual and contingent liabilities for Taxes (as defined below) with respect to all periods through the failure date of which the Reference Balance Sheet and neither the Quadrem Group nor any Quadrem Subsidiary has, nor will, incur any Tax liability in excess of the amount reflected (excluding any amount thereof that reflects timing differences between the recognition of income for purposes of U.S. GAAP and for Tax purposes) on the Reference Balance Sheet included in the Interim Financial Statements with respect to pay would such periods, and (ii) properly accrue in accordance with U.S. GAAP all liabilities for Taxes payable after the date of the Reference Balance Sheet, with respect to all transactions and events occurring on or prior to such date. Neither the Quadrem Group nor any Quadrem Subsidiary will, as a result of the transactions contemplated herein, become liable for any Tax not have a Material Adverse Effectadequately reserved against on the Interim Financial Statements. The Company All information set forth in the notes to the Interim Financial Statements relating to Tax matters is true, complete and accurate in all respects. Neither the Quadrem Group nor any Quadrem Subsidiary has incurred any Tax liability since the date of the Reference Balance Sheet other than in the ordinary course of business, and the Quadrem Group and each Quadrem Subsidiary have set aside has made adequate provisions for all Taxes since that date in accordance with U.S. GAAP on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyat least a quarterly basis.
(b) The Quadrem Group and each Quadrem Subsidiary has withheld and paid to the applicable financial institution or Tax Authority all amounts required to be withheld. Except where such unpaid as set forth in Disclosure Schedule 3.15(b) attached, to the best knowledge of the Seller, no Tax would Returns filed with respect to Taxable years through the Taxable year ended 2009 in the case of the United States, have been examined and closed. The Quadrem Group (or any member of any affiliated or combined group of which the Quadrem Group has been a member) has not have a Material Adverse Effectgranted any extension or waiver of the limitation period applicable to any Tax Return that is still in effect and there is no claim, audit, action, suit, Proceeding, or (to the knowledge of the Seller) investigation now pending, threatened or expected against or with respect to the Quadrem Group in respect of any Tax or assessment. No notice of deficiency or similar document of any Tax Authority has been received by the Seller, the Quadrem Group or any Quadrem Subsidiary, and there are no unpaid liabilities for Taxes claimed (including liabilities for interest, additions to Tax and penalties thereon and related expenses) with respect to the issues that have been raised (and are currently pending) by any Tax Authority that could, if determined adversely to the Quadrem Group or any Quadrem Subsidiary, adversely affect the liability of the Quadrem Group or the applicable Quadrem Subsidiary for Taxes. Except as set forth in Disclosure Schedule 3.15(b) attached, no claim has been made by a Tax Authority in a jurisdiction where the Quadrem Group or any Quadrem Subsidiary does not file income Tax Returns that the Quadrem Group or any Quadrem Subsidiary is or may be subject to income taxation by that jurisdiction. There are no liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Quadrem Group or any Quadrem Subsidiary. All elections with respect to the Quadrem Group’s and each Quadrem Subsidiary’s Taxes made during the fiscal years ending December 31, 2007, 2008 and 2009 are reflected on the Quadrem Group’s or applicable Quadrem Subsidiary’s Tax Returns for such periods, copies of which have been provided to Buyer. After the date of this Agreement, no election with respect to Taxes will be made by Seller without the Taxing authority prior written consent of any jurisdictionBuyer, which consent will not be unreasonably withheld or delayed. The Quadrem Group has previously provided or made available to Buyer true and correct copies of all income, franchise, and sales Tax Returns, and, as reasonably requested by Buyer, prior to or following the officers of the Company date hereof, presently existing information statements and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsreports.
(c) Neither the Company Quadrem Group nor any Quadrem Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations predecessor of the Company Quadrem Group or any Quadrem Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations corporations, within the meaning of Section 1504(a) 1504 of the Code Code. Neither the Quadrem Group nor any Quadrem Subsidiary is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement (whether written or unwritten or arising under operation of federal Law as a result of being a member of a group filing consolidated Tax Returns, under operation of certain state Laws as a combined federal income Tax return (result of being a member of a unitary group, or any similar provision under comparable Laws of non-U.S., state other states or local Lawforeign jurisdictions) nor does the Company Quadrem Group or any Quadrem Subsidiary of the Company have any liability for Taxes or potential liability to another party under such agreement. Neither the Quadrem Group nor any Quadrem Subsidiary has made or will make a deemed dividend election under Treas. Reg. §1.1502-32(f)(2) or a consent dividend election under Section 565 of the Code. Neither the Quadrem Group nor any Quadrem Subsidiary has ever been a party (either as a distributing corporation, a distributed corporation or otherwise) to any transaction intended to qualify under Section 355 or Section 361 of the Code or any corresponding provision of state Law.
(d) Except as set forth in Section 3.15(d) of the Seller Disclosure Schedule, the Quadrem Group and each Quadrem Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Person under Treasury Regulations § 1.1502Tax-6 sharing agreement or order of a foreign government, including without limitation the Dutch tax ruling referenced in the Seller Disclosure Schedule, and the consummation of the Acquisition will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax-sharing agreement or order. Except as set forth in Section 3.15(d) of the Seller Disclosure Schedule, neither the Quadrem Group nor any Quadrem Subsidiary is currently and never has been subject to the reporting requirements of Section 6038A of the Code. The Quadrem Group and the Quadrem Subsidiaries have not participated in (and will not participate in) an international boycott within the meaning of Section 999 of the Code. Section 3.15(d) of the Seller Disclosure Schedule contains a true and complete list of (i) each country in which the Quadrem Group or any similar Quadrem Subsidiary has, or previously had, a permanent establishment, as defined in any applicable Tax treaty or convention between the United States of America and such foreign country; (ii) each country within which the Quadrem Group or any Quadrem Subsidiary has engaged in a trade or business.
(e) None of the assets of the Quadrem Group or any Quadrem Subsidiary is property that the Quadrem Group or Quadrem Subsidiary is required to treat as being owned by any other person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Code. None of the assets of the Quadrem Group or any Quadrem Subsidiary directly or indirectly secures any debt the interest on which is Tax exempt under Section 103(a) of the Code. None of the assets of the Quadrem Group or any Quadrem Subsidiary is “tax-exempt use property” within the meaning of Section 168(h) of the Code. Neither the Quadrem Group nor any Quadrem Subsidiary has ever elected to be treated as an S-corporation under Section 1362 of the Code or any corresponding provision of nonfederal or state Law.
(f) Neither the Quadrem Group nor any Quadrem Subsidiary is, nor has been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g) The Quadrem Group and each Quadrem Subsidiary has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. Neither the Quadrem Group nor any Quadrem Subsidiary is a party to any “listed transaction” within the meaning of Section 6707A of the Code or Section 1.6011-U.S., state or local Law) or otherwise, other than 4 of the consolidated group of which the Company is currently the parent corporationTreasury Regulations.
(h) Neither the Company Quadrem Group nor any Quadrem Subsidiary has engaged in will be required to include any transaction that could give rise to a disclosure obligation 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, other than by reason of the transactions contemplated herein, for Tax purposes for a taxable period ending on or prior to the Closing Date (including, without limitation, by reason of Section 481 or 203A of the Code); (ii) “reportable transactionclosing agreement” under as described in Section 6011 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 transaction or excess loss account described in Section 1502 of the Code and Treasury Regulations promulgated the regulations thereunder (or any corresponding or similar provision of non-U.S.state, state local or local Lawforeign income Tax law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ariba Inc)
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been 3.16.1. The Seller has timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes tax returns required to be paid by or with respect to the Company filed and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes all taxes owed (whether or not shown or required to be shown on any Tax Returnsuch tax returns) for which the Company or any Subsidiary may be liable have been timely paidpaid or remitted. All such tax returns were true, except for Taxes complete and correct in all material respects. No portion of any tax return has been the failure subject of any audit, action, suit, proceeding, claim or examination by any Governmental Entity, and no such audit, action, suit, proceeding, claim, deficiency or assessment is pending or, to the Knowledge of the Seller, threatened. Seller is not currently the beneficiary of any extension of time within which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of file any jurisdictiontax return, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that Seller has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for waived any Taxes statute of limitation with respect to any income, properties tax or operations agreed to any extension of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects time with all Applicable Laws relating respect to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claima tax assessment, or notice of claim, deficiency. No claim has ever been made by an authority a Governmental Entity in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns tax returns that the Company or such Subsidiary it is or may be subject to taxation by that jurisdiction. There are no Liens for taxes upon the Purchased Assets other than for taxes not yet due. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete copy of this document has been filed separately with the Securities and Exchange Commission.
(g) Neither 3.16.2. The Seller has withheld and paid all taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, stockholder, independent contractor, creditor, or other third party.
3.16.3. No state of facts exists or has existed that would constitute grounds for the Company nor any Subsidiary has been a member assessment against the Buyer, whether by reason of an affiliated group transferee liability or otherwise, of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes any tax of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, anyone other than the consolidated group Buyer.
3.16.4. The Seller has timely paid all taxes, and all interest and penalties due thereon and payable by it, for the pre-Closing tax period which will have been required to be paid on or prior to the Closing Date, the non-payment of which would result in a Lien on any Purchased Asset or would result in the Company is currently the parent corporationBuyer becoming liable or responsible therefor.
(h) Neither 3.16.5. The Seller has established, in accordance with generally accepted accounting principles applied on a basis consistent with that of preceding periods, adequate reserves for the Company nor any Subsidiary has engaged payment of, and will timely pay, all taxes which arise from or with respect to the Purchased Assets incurred in any transaction that could give rise or attributable to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of pre-Closing tax period, the non-U.S., state payment of which would result in a Lien on any Purchased Asset or local Law)would result in the Buyer becoming liable therefor.
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) 17.1 All Tax returns, Tax estimates, information statements, reports, information returnsdeclarations, declarations of estimated Tax and other declarations filings have been duly filed by the Company and statements the Subsidiary in accordance with respect to Taxes the relevant provisions of Applicable Law, with the appropriate Tax authorities (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such ). Such Tax Returns are complete true and accurate correct in all respects and disclose have been completed in SHARE PURCHASE AND SHAREHOLDERS’ AGREEMENT E-STAMP PAPER #: SUBIN-KAKACRSFL0897652837512029O EXECUTION COPY accordance with Applicable Law in all respects. The Company and the Subsidiary have paid all Taxes required to be paid by or with respect to the Company due and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes payable (whether or not shown on any Tax Return) for which Returns), have complied with all Applicable Laws in relation to transfer pricing, and have maintained all relevant documentation in relation to Tax compliance (including applicable transfer pricing documentation).
17.2 There is no Tax deficiency outstanding or assessed or proposed against the Company or any Subsidiary may be liable have been timely paidand/or the Subsidiary, except for Taxes nor has either the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on extended the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, period for the assessment or collection of any Tax. No adjustment relating to any Tax returns filed by the Company and the Subsidiary has been proposed by any Tax authority to the Company and/or the Subsidiary, or any representatives thereof. Neither the Company nor the Subsidiary has any liability for any unpaid Taxes which has not been accounted for or reserved in its respective accounts.
17.3 The Company and the Subsidiary have withheld with respect to their respective employees and all other Third Parties, all applicable Taxes required to be withheld under Applicable Law and have made payment of such Taxes to the appropriate authorities within the due dates thereof. The Company and the Subsidiary have withheld and paid for appropriate contributions to the provident fund, superannuation, gratuity, employee state insurance and any other contributions, each as required by Applicable Law.
17.4 There is no claim Tax deficiency outstanding or assessed or proposed against the Company and/or the Subsidiary, nor has the Company or the Subsidiary extended the period for the assessment or collection of any Taxes has been asserted against the Company Tax. No audit or other examination of any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations Tax Return of the Company or the Subsidiary by any Tax authority is presently in progress, nor has the Company or the Subsidiary been notified of any request for such an audit or other examination. No adjustment relating to any Tax Returns filed by the Company and/or the Subsidiary has been proposed, asserted or assessed against proposed by any appropriate authority to the Company or any the Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) any representative thereof. Neither the Company nor any the Subsidiary has any liability for any unpaid Taxes which has not been a member accounted for or reserved in the relevant Accounts.
17.5 No audit or other examination of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income any Tax return (or Return by any similar provision of non-U.S.Tax authority is presently in progress, state or local Law) nor does has the Company or any the Subsidiary of the Company have any liability for Taxes been notified of any request for such an audit or other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationexamination.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Share Purchase and Shareholders’ Agreement (Kaleyra, Inc.)
Tax. (a) 21.1 All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to Returns that are or have been required by law to be filed on or before the date of this Deed by or with respect to each Group Company has been filed within the Company requisite time period and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete were (when filed) true and accurate correct in all material respects and disclose all Taxes required none of them is or is likely to be paid be, the subject of any dispute with or investigation by or with respect to the Company any Tax Authority. No Tax Return (and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have nothing in a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) is disputed or is yet to be determined by, or subject to agreement with, a Tax Authority.
21.2 The Company has maintained all such records in relation to Tax as it is required by applicable laws to maintain.
21.3 The provisions or reserves for Tax provided for in the Locked Box Accounts are sufficient (on the basis of the rates of tax current or substantively enacted for the relevant accounting purpose at the date of this Deed) to cover all Tax for which the Company is as at the Locked Box Date, or may after that date become or have become, liable on or in respect of or by reference to, any Subsidiary may be liable profits, gains or income (whether deemed or actual) for any period ended on or before the Locked Box Date or in respect of any distribution or transaction made or entered into, or deemed made or entered into, on or before the Locked Box Date.
21.4 The Company has duly submitted all claims and disclaimers or withdrawals of claims and has obtained any clearances which have been timely paid, except assumed to have been made for the purposes of the Accounts and Locked Box Accounts.
21.5 The Company has not at any time within the [REDACTED – Time Period] prior to the date of this Deed received any refund of Taxes the failure of to which it is not entitled.
21.6 The Company has paid all Tax which it has become liable to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside including instalments on its books provision reasonably adequate account of Taxes for the payment of all material Taxes for periods subsequent current year required by applicable law and is not, and has not during the [REDACTED – Time Period] prior to the periods date of this Deed been, liable to which such Tax Returns applypay a penalty, surcharge, fine or interest in respect of Tax.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there 21.7 All withholdings and deductions relating to Taxation as are no unpaid Taxes claimed required by law to be due made by the Taxing authority of any jurisdiction, and the officers of the each Group Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied before Completion have in all material respects with all Applicable Laws relating been made properly and in a timely manner and have been duly accounted for and delivered to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsrelevant Tax Authorities.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The 21.8 Each Group Company is, and has at all times been, classified resident in its country of incorporation for Tax purposes and does not have and has not had a branch or permanent establishment in any other jurisdiction for any Tax purpose, and has not been treated by any Tax Authority as resident or having a branch or permanent establishment or any liability to Tax in any other jurisdiction for any Tax purpose.
21.9 The Company has during the [REDACTED – Time Period] prior to the date of this Deed properly operated the Pay As You Earn system (including in relation to national insurance contributions and non-UK equivalent jurisdictions) and any equivalent non-UK system, deducting income taxes and social security or other compulsory contributions from all payments to, or treated for the Tax purposes as made to, employees and ex-employees of it, and has accounted to the relevant Tax Authority for all Tax so deducted and all Tax chargeable on benefits provided to its employees.
21.10 None of the assets which are owned by any Group Company are the subject of any charge, power of sale or mortgage in favour of any Tax Authority.
21.11 The Company is not, and has not during the [REDACTED – Time Period] prior to the date of this Deed been, subject to any audit, investigation, dispute or litigation involving any Tax Authority and no Tax Authority has indicated in writing that it intends to investigate the Tax affairs of the Company nor are the Warrantors aware of any other circumstances existing at the date of this Agreement as a corporation result of which such an audit, investigation, dispute or litigation is likely to arise.
21.12 No Tax Authority has operated or agreed to operate in writing any special arrangement (being an arrangement which is not based on relevant legislation, published practice or convention) in relation to the affairs of the Company.
21.13 Each Group Company and any other company which has been treated as a member of the same group of companies as a Group Company for U.S. federal income tax the purposes of Sales Tax has complied in all material respects (“material” in the context of such a group being construed by reference to the group as a whole) with all statutory requirements, orders, provisions, directions or conditions relating to Sales Tax, including (for the avoidance of doubt) the terms of any written agreement reached with any appropriate Tax Authority.
21.14 The Company, to the extent a taxable person for UK VAT purposes, has only made taxable supplies for such purposes.
21.15 The Company is not, and has not in the [REDACTED – Time Period] prior to the date of this Deed, been a party to any transaction, agreement or arrangement otherwise than by way of a bargain at arm’s length, or any transaction, agreement or arrangement (whether or not by way of a bargain at arm’s length) under which it has been or is required to make any payment for any goods, services or facilities provided to it which is in excess of the market value of such goods, services or facilities or under which it has been, or is required to provide goods, services or facilities for a consideration which is less than the market value of such goods, services or facilities.
21.16 The Company has not entered into any notifiable arrangements for the purposes of Part 7 of the Finance Act 2004, any notifiable contribution arrangement for the purpose of the National Insurance Contribution (Application of Part 7 of the Finance Act 2004) Regulations 2007 (SI 2007/785) or any notifiable schemes for the purposes of Schedule 11A to the Value Added Tax Act 1994. The Company has not entered into any transactions of a type in respect of which any relevant Tax Authority has announced any specific countermeasures, whether in the form of a change in law or litigation.
21.17 Valid elections under section 431(1) of the Income Tax (Earnings and Pensions) Act 2003 have been made by the relevant employer and the relevant employee in respect of any employment-related securities that are restricted securities or a restricted interest in securities (as those terms are defined for the purposes of that section) issued by a Group Company to which that Act applies.
21.18 The share register of the Company has been kept outside the United Kingdom at all times.
21.19 Each Group Company incorporated in Jersey is subject to tax in accordance with the provisions of Article 123C of the Income Tax (Jersey) Law 1961 (the “Income Tax Law”) (Non-financial services companies) and each Group Company incorporated in Jersey is not, and has not been within the last three years, in receipt of any Schedule A income in accordance with the provisions of the Income Tax Law.
21.20 Each Group Company incorporated in Jersey is an international services entity within the meaning of the Goods and Services Tax (Jersey) Law 2007.
Appears in 1 contract
Sources: Management Warranty Deed (Concordia Healthcare Corp.)
Tax. (a) All material Tax returns, Tax reports, information returns, declarations Returns required by Law to be filed by Acquiror or any of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) filed, and all such Tax Returns are true, correct and complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of in all material Taxes for periods subsequent to the periods to which such Tax Returns applyrespects.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid All material amounts of Taxes claimed required by Law to be due paid by Acquiror or its Subsidiaries have been timely paid (taking into account any valid extensions obtained in the Taxing authority ordinary course of any jurisdictionbusiness), and since the officers date of the Company and each Subsidiary know most recent balance sheet of no basis for Acquiror neither Acquiror nor any such claim. The provisions for Taxes payableof its Subsidiaries have incurred or accrued any material Tax liability or material amounts of taxable income or gain outside the ordinary course of business, if anyexcept under this Agreement and/or the performance by Acquiror of its obligations hereunder, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementstransaction expenses.
(c) Neither the Company nor any Subsidiary is a party Each of Acquiror and its Subsidiaries has (i) withheld and deducted all amounts of material Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any claimemployee, disputeindependent contractor, auditcreditor, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company shareholder or any Subsidiary that has not been settled with all other third party, (ii) timely remitted such amounts due having been paid.
to the appropriate Governmental Authority; and (diii) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with applicable Law with respect to Tax withholding, including all Applicable Laws relating information reporting and record keeping requirements;
(d) Neither Acquiror nor any of its Subsidiaries is engaged in any audit, administrative proceeding or judicial proceeding with respect to income or other material Taxes. Neither Acquiror nor any of its Subsidiaries has received any written notice from a Governmental Authority of a dispute or claim with respect to income or other material Taxes, other than disputes or claims that have since been resolved, and to the payment and withholding knowledge of TaxesAcquiror, including sales and use Taxes, and no such claims have been threatened. No written claim has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Authority in a jurisdiction where the Company Acquiror or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return that the Company or such Subsidiary entity is or may be subject to taxation Taxes by that jurisdiction. There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes of Acquiror or any of its Subsidiaries and no written request for any such waiver or extension is currently pending (other than in each case as a result of any valid extension of the time within which to file a Tax Return).
(e) Neither Acquiror nor any of its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) (i) within the past two (2) years or (ii) as a part of a “plan” or “series of related transactions” (each within the meaning of Section 355(e) of the Code) in connection with the Transactions.
(f) Neither Acquiror nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (or any corresponding or similar provision of U.S. state or local or non-U.S. Law).
(g) Neither the Company Acquiror nor any Subsidiary has been of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a member result of any: (i) change in, or use of an affiliated group improper, method of corporations within accounting for a taxable period (or portion thereof) ending on or prior to the meaning 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) entered into prior to Closing; (iii) installment sale or open transaction disposition made prior to the Closing; (iv) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1504(a1502 of the Code (or any corresponding or similar provision of state, local or foreign income tax law) consummated or arising prior to the Closing; or (v) prepaid amount or deferred revenue received prior to the Closing, other than in the ordinary course of business. Neither Acquiror nor its Subsidiaries will be required to make any payment after the Closing Date as a result of an election under Section 965(h) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Power & Digital Infrastructure Acquisition Corp.)
Tax. Except as set forth on Schedule 3.8:
(a) All Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company The Corporation and each Subsidiary have been has duly and timely filed (taking into account any extensions) with the appropriate taxing authorities all material federal, state and local income Tax Returns and all such other material Tax Returns required to be filed through the date hereof and will duly and timely file any such returns required to be filed on or prior to the Closing. Such Tax Returns and other information filed are (and, to the extent they will be filed prior to the Closing, will be) complete and accurate and disclose in all Taxes required to be paid by or with respect to material respects. Neither the Company and each Corporation nor any Subsidiary has pending any request for the periods covered thereby, except for Tax Returns the failure an extension of time within which to file would not have a Material Adverse Effect. All Taxes (whether federal, state or not shown on any local income Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applyReturns.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers None of the Company and each Corporation, any Subsidiary, Buyer or any direct or indirect Subsidiary know of no basis IEH is or will be liable for any such claim. The provisions Pre-Closing Taxes, except for Pre-Closing Taxes payable, if any, (other than income Taxes) shown as due and payable after the Closing on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsFinancial Statements.
(c) No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes or material Tax Returns of the Corporation or any Subsidiary. Neither the Company Corporation nor any Subsidiary is has received a party to any claim, dispute, audit, pending Action or proceeding, nor is written notice of any such claim, dispute, Action pending audits or proceeding threatened by any Taxing authority, for proceedings. There are no outstanding waivers extending the assessment or collection statutory period of any limitation relating to the payment of Taxes and no claim for due from the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company Corporation or any Subsidiary.
(ed) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to Neither the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company IRS nor any other taxing authority (whether domestic or foreign) has asserted in writing against the Corporation or any Subsidiary is liable any material deficiency or material claim for any Taxes for failure to comply with such Applicable Lawsin excess of the reserves established therefor.
(fe) No claim, There are no Liens for Taxes upon any property or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) assets of the Code filing a combined federal income Tax return (Corporation or any similar provision of non-U.S.Subsidiary, state or local Law) nor does the Company or any Subsidiary of the Company have any liability except for Liens for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Lawnot yet due and payable and Liens for Taxes that are being contested in good faith by appropriate proceedings as set forth on Schedule 3.8(e) or otherwise, other than the consolidated group of and as to which the Company is currently the parent corporationadequate reserves have been established in accordance with GAAP.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement, the Company and its Subsidiaries shall prepare and file on or before the due date thereof all Tax returnsReturns required to be filed by any of the Company and its Subsidiaries (except for any Tax Return for which an extension has been granted as permitted hereunder) on or before the Closing Date, and shall pay all Taxes (including estimated Taxes) due on such Tax reports, information returns, declarations of estimated Tax and other declarations and statements Return (or due with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns for which an extension has been granted as permitted hereunder) or which are complete and accurate and disclose all Taxes otherwise required to be paid by at any time prior to or during such period. Such Tax Returns shall be prepared in accordance with respect the most recent Tax practices as to the Company elections and each Subsidiary for the periods covered thereby, accounting methods except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary new elections that may be liable have been timely paidmade therein that were not previously available, except for Taxes the failure of which subject to pay would Parent’s consent (not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns applybe unreasonably withheld or delayed).
(b) Except where such unpaid Tax would not have a Material Adverse EffectUntil the earlier of (i) the Closing Date, there are no unpaid Taxes claimed or (ii) the termination of this Agreement, to be due by the Taxing authority of extent any jurisdiction, and the officers of the Company and each Subsidiary know its Subsidiaries has knowledge of no basis the commencement or scheduling of any Tax audit, the assessment of any Tax, the issuance of any notice of Tax due or any ▇▇▇▇ for collection of any Tax due or the commencement or scheduling of any other administrative or judicial proceeding with respect to the determination, assessment or collection of any Tax of the Company or its Subsidiaries, the Company shall provide prompt notice to Parent of such claim. The provisions for Taxes payablematter, if any, shown on setting forth information (to the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to extent known) describing any asserted Tax liability in reasonable detail and including copies of any notice or other documentation received from the dates of applicable Tax authority with respect to such financial statementsmatter.
(c) Neither Until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement, none of the Company nor or its Subsidiaries shall take any Subsidiary is a party to of the following actions without the Parent’s consent: (i) make, revoke or amend any claim, dispute, audit, pending Action or proceeding, nor is Tax election; (ii) execute any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the waiver of restrictions on assessment or collection of any Taxes and no claim for the assessment Tax; or collection of (iii) enter into or amend any Taxes has been asserted against the Company agreement or settlement with any Subsidiary that has not been settled with all amounts due having been paidTax authority.
(d) No lien All tax-sharing agreements or similar arrangements with respect to Taxes or involving the Company or its Subsidiaries pursuant to which any of them has been filed and no deficiency or addition a current obligation to Taxesmake a payment under such an agreement shall be terminated prior to the Closing Date, interest or penalties for any Taxes with respect to any incomeand, properties or operations after the Closing Date, none of the Company or its Subsidiaries shall be bound thereby or have any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiaryliability thereunder for amounts due in respect of such agreements and arrangements.
(e) The Company and each Subsidiary has complied its Subsidiaries shall retain copies of all Tax Returns, schedules, workpapers, records and other documents in all material respects with all Applicable Laws its possession relating to Tax matters for periods or portions thereof before the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from Closing Date until 60 days after the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) expiration of the Code filing a combined federal income applicable statute of limitations with respect to such Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationmatters.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. 4.1 Each Group Company has filed (aor has had filed on its behalf) All with the appropriate Tax Authority all tax returns, Tax reports, information returns, declarations of estimated statements, forms, filings and reports (each a Tax and other declarations and statements Return) required to be filed with respect to Taxes such Group Company. All such Tax Returns were true, correct and complete in all material respects (collectively, “in view of the respective Tax Returns”) required to have been filed by or and were prepared in substantial compliance with all applicable Laws. All Taxes due with respect to the each Group Company and each Subsidiary have been timely filed (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for . All Taxes the failure of which required to pay would not be withheld by any Group Company in connection with amounts paid to any person or other Group Company have a Material Adverse Effect. The Company been properly withheld and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to which such relevant Tax Returns applyAuthority and all forms required with respect thereto have been properly completed and timely filed by the due date.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by 4.2 To the Taxing authority of any jurisdiction, and the officers knowledge of the Key Warrantors, no Group Company and each Subsidiary know is currently the subject of no basis for any such claima Tax audit or Tax examination. The provisions for Taxes payableNo Tax audit or Tax examination has been claimed or raised, if anyin writing, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes Tax Authority with respect to any incomeGroup Company.
4.3 No Group Company (i) has waived any statute of limitations in respect of Taxes (other than any waiver which is no longer in effect) or (ii) has consented to extend the time, properties or operations is the beneficiary of the any extension of time, in which any Tax may be assessed or collected by any Tax Authority (other than any extension which is no longer in effect).
4.4 No Group Company has received from any Tax Authority any notice of proposed adjustment, deficiency, underpayment of Taxes or any Subsidiary other such notice which has not since been proposed, asserted satisfied by payment or assessed against the Company or any Subsidiarybeen withdrawn.
(e) The Company and each Subsidiary 4.5 No written claim has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Tax Authority in a jurisdiction where the any Group Company or a Subsidiary does not file Tax Returns that the any such Group Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
4.6 No Group Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (gor portion thereof) Neither ending after the Completion Date as a result of any action taken prior to the Completion Date (i) in respect of any change in method of accounting for a Tax period or portion thereof ending on or prior to the Completion Date which change has been made prior to the Completion Date, or (ii) in respect of any “closing agreement” or similar understanding entered into outside the ordinary course of business with any Tax Authority that has the effect of (1) deferring taxable income from a taxable period (or portion thereof) ending on or before the Completion Date to a taxable period (or portion thereof) beginning after the Completion Date or (2) accelerating any item of deduction from a taxable period (or portion thereof) beginning after the Completion Date to a taxable period (or portion thereof) ending on or before the Completion Date.
4.7 No Group Company nor or any Subsidiary other person on their behalf has granted to any person any power of attorney that is currently in force with respect to any Tax audit or examination.
4.8 No Group Company (i) has been a member of an affiliated group, fiscal unity, organschaft, or other similar combined group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated any such group of which the Company is currently the parent corporation.
common parent), (hii) Neither the Company nor is party to or bound by, or liable for any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation Taxes as a “reportable transaction” under Section 6011 result of, any Tax allocation or sharing agreement (other than (1) any such customary agreements with customers, vendors, lenders, lessors or the like entered into in the ordinary course of business, (2) any agreement between the Code and Treasury Regulations promulgated thereunder Group Companies, or (or 3) any similar provision of non-U.S., state or local Lawagreement where property Taxes are payable with respect to properties leased).
4.9 All related party transactions involving any Group Company have been conducted at arm’s length in compliance with the transfer pricing laws of the jurisdictions in which it operates. If required by Law, the Company has maintained documentation (iincluding any applicable transfer pricing studies) The in connection with such related party transactions in compliance with the transfer pricing laws of the jurisdictions in which it operates.
4.10 No Group Company ishas a permanent establishment in a country other than the country in which it is incorporated.
4.11 Each Group Company has complied with the requirements and provisions of the value added tax legislation and has made and maintained accurate and up to date records, invoices and other documents required by or necessary for the purposes of the value added tax legislation and each Group Company has punctually paid and made all payments and returns required thereunder.
4.12 All documents necessary to establish the title of a Group Company to any asset or necessary for a Group Company to enforce any of its rights have been duly stamped and any stamp duties or similar transfer Taxes (including interest and penalties) in respect of such documents have been paid.
4.13 No Group Company is or, to the knowledge of the Key Warrantors, is reasonably likely to become secondarily liable to pay any Taxes, or to reimburse or indemnify any person (other than a Group Company) in respect of Taxes, (whether as a result of the failure by another person (not being a Group Company) to discharge any Taxes for which that person is primarily liable, or otherwise) and which arises (or is deemed by law to arise) in respect of a period prior to Completion.
4.14 No Group Company has engaged or been a party to any scheme or arrangement in respect of which the main purpose (or one of the main purposes) was the avoidance, deferral or reduction of Tax, and no Group Company has at all times beenbeen a party to any preordained series of transactions containing one or more steps which have no commercial purpose other than avoiding, classified deferring or saving Tax, or otherwise obtaining a Tax advantage.
4.15 No election has been made to treat Bureau van Dijk Electronic Publishing, Inc. as a corporation partnership or an entity disregarded from its owner for U.S. US federal income tax purposes.
Appears in 1 contract
Tax. (a) All The Seller has timely filed with the appropriate Governmental Body all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that the Seller is required to have been filed prior to the date hereof. All Tax Returns filed by or with respect to the Company Seller are true, correct and each Subsidiary have been timely filed (taking into account any extensions) and complete in all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectrespects. All Taxes owed (or to be remitted) by the Seller (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent paid to the periods to appropriate Governmental Body. No event has occurred which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of could impose on Buyer any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether successor or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties transferee liability for any Taxes with in respect to any income, properties or operations of the Company or any Subsidiary Seller. No claim has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority any Governmental Body in a jurisdiction where the Company or a Subsidiary Seller does not file Tax Returns that the Company or such Subsidiary Seller is or may be subject to the payment, collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Seller that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Since the Balance Sheet Date, the Seller has not incurred any Liability for Taxes outside the ordinary course of business.
(gb) Neither The Seller has withheld or collected, and paid to the Company appropriate Governmental Body, all Taxes required to have been withheld or collected and remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with amounts paid or owing to any employee, customer, creditor, equityholder, independent contractor, or other third party. The Buyer will not be required to withhold any amounts upon the transfer of the Purchased Assets to the Buyer.
(c) There is no basis for any Governmental Body to, and neither the Seller nor any Subsidiary director or officer (or employee responsible for Tax matters) of the Seller expects any Governmental Body to, assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted by the Seller either (i) claimed or raised by any Governmental Body in writing or (ii) as to which the Seller has Knowledge.
(d) The Seller has not waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of the Seller has been requested, granted or currently is in effect.
(e) The Seller is, and since its organization has been, treated as a member of an affiliated group of corporations partnership for U.S. federal and applicable state income Tax purposes. The Seller has not made any payments, is not obligated to make any payments, and is not a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). The Seller has not been a United States real property holding corporation within the meaning of Section 1504(aCode § 897(c)(2) of during the applicable period specified in Code filing a combined § 897(c)(1)(A)(ii). The Seller has disclosed on its federal income Tax return (Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. The Seller is not a party to any Tax allocation, sharing, reimbursement or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability agreement. The Seller has no Liability for Taxes of any other Person under Treasury Regulations Regulation § 1.1502-6 (or any similar provision of nonany other Law), as a transferee or successor, by Contract, or otherwise. No Purchased Asset constitutes “tax-U.S.exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Purchased Asset is an interest, directly or indirectly, in any joint venture, partnership, limited liability company or other entity that is treated as a partnership for U.S. federal, state or local Lawincome Tax purposes. No Purchased Asset is subject to the anti-churning provisions of Code § 197(f)(9) or otherwisethe Treasury Regulations promulgated thereunder.
(f) The Seller has not, directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) that would constitute (i) a “reportable transaction” or “listed transaction” as defined in Treasury Regulation § 1.6011-4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(g) Schedule 4.14 (i) contains a list of all states, territories and other than the consolidated group of jurisdictions (whether domestic or foreign) in which the Company is Seller has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the parent corporationsubject of audit, (iv) lists all Tax rulings and similar determinations requested or received by, or otherwise relate to, the Seller, and (v) contains a complete and accurate description of all material Tax elections that were made by or on behalf of the Seller. The Seller has delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, the Seller during the six-year period ending on the date hereof.
(h) Neither Schedule 4.14 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which the Company nor any Subsidiary has engaged in any transaction Seller is a party that could give rise to a disclosure obligation as is a “reportable transactionnonqualified deferred compensation plan” under Section 6011 within the meaning of Code §409A and the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
hereunder. Each such nonqualified deferred compensation plan (i) The Company iscomplies, and is operated and administered in accordance, with the requirements of Code §409A, the Treasury Regulations promulgated hereunder and any other IRS guidance issued thereunder and (ii) has at all times beenbeen operated and administered in good faith compliance with Code §409A from the period beginning on January 1, classified as a corporation for U.S. federal income tax purposes2005.
Appears in 1 contract
Tax. (a) All Tax returnsReturns of the Company and each of its Subsidiaries required by law to be filed have been timely and duly filed and all material Taxes, Tax reportsobligations, information returns, declarations of estimated Tax fees and other declarations governmental charges upon the Company, or its properties, or its income or assets, that are due and statements payable or required to be withheld, have been timely paid or withheld in full, other than those presently payable without penalty or interest or for which appropriate reserves have been established. To the knowledge of the Company and the Securities Holders, neither the Company, nor any of its Subsidiaries is currently the subject of an audit or other examination of Taxes by the Taxation Authority (and no such audit is threatened in writing) nor has the Company or any of its Subsidiaries received any written notices within the past five years from any Taxation Authority relating to any issue which could reasonably be expected to affect the Tax liability of the Company. Neither the Company nor any of its Subsidiaries (A) has entered into an agreement or waiver (that has not expired) or has been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or (B) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any court, tribunal or agency. The Company has not received any written notice or indication that the Company has been involved in any scheme, arrangement, transaction or series of transactions in which the main purpose or one of the main purposes was the evasion or avoidance of Tax. The Company is resident for Tax purposes solely in Israel and is duly registered for all Taxes the registration for which is required by law. The Company has not received any written notice from any Taxation Authority that requires or will require it to withhold Taxes from any payment made since the Accounts Date or which will or may be made after the date of this Agreement. The Company is not or has not become liable to pay, nor to the knowledge of the Company and the Securities Holders, are there any circumstances by virtue of which the Company is likely to become liable to pay, any penalty, fine, surcharge or interest in connection with respect to Taxes (collectively, “Tax Returns”) any Tax. The Company has duly and timely filed all income or other material tax returns required to have been filed by or it, and there are in effect no waivers of applicable statutes of limitations with respect to the Company and each Subsidiary have been timely filed (taking into account taxes for any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effectyear. All Taxes (whether documents in the possession or not shown on any Tax Return) for which under the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers control of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently a party and which attract stamp duty have been duly stamped and all amounts payable thereon have been duly paid. Qualifications relating to the parent corporationabove are set forth in Schedule 7.23.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All Tax returns, Tax reports, information returns, declarations of estimated Tax 4.1 The payments and other declarations benefits referred to in clause 3 shall be subject to any tax and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to National Insurance contributions that the Company and each Subsidiary have been timely filed and/or any relevant Group Company are obliged by law to pay or deduct. These deductions shall be in accordance with the Company’s understanding of the tax regime applicable at the time of the relevant payment or provision of the relevant benefit (taking into account any extensions) and all such Tax Returns are complete and accurate and disclose all Taxes required as applicable). The Employee hereby agrees to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate responsible for the payment of any tax, employee National Insurance contributions and other statutory deductions as required by law (whether the same are payable in the United Kingdom or elsewhere) in respect of all material Taxes for periods subsequent and any part of the payments and/or benefits referred to in clause 3 and to indemnify each and every Group Company (and to keep each and every Group Company indemnified on a continuing basis) against all such liabilities to taxation, employee National Insurance contributions or statutory deductions including any interest, fines, penalties, surcharges, costs and expenses (the “Excess Tax”) which they may incur in respect thereof save:
(a) to the periods to which extent that any such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effectinterest, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdictionfines, and the officers penalties, surcharges, costs or expenses arises out of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations failure of the Company or any Subsidiary has other Group Company to respond promptly to any relevant HMRC demand for allegedly unpaid tax and/or other statutory deductions or arise out of its or their failure to account to HMRC for deductions which have been proposedmade by them; and/or
(b) for the avoidance of doubt, asserted or assessed against that the indemnity in this clause 4.1 shall not apply to sums already deducted by the Company in respect of tax, employee National Insurance contributions and/or other statutory deductions from any of the payments referred to in clause 3 nor to any interest, fines, penalties, surcharges, costs or any Subsidiaryexpenses in respect thereof.
4.2 Before making any payment of Excess Tax in relation to payments and/or benefits referred to in clause 3 (e) The in addition to the deductions already envisaged to be made by the Company and each Subsidiary has complied in all material respects from such payments pursuant to the terms of this Agreement), the Company will inform the Employee as soon as reasonably possible of the body claiming that the payment is due, provide the Employee with all Applicable Laws documentation relating to the payment claim as soon as is reasonably practicable and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws consult with the Employee regarding any response to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsclaim.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company nor any Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Tax. (a) All material Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements Returns required by applicable Law to be filed with respect to Taxes (collectively, “Tax Returns”) required to such Contributing Party’s Contributed Equity Interests have been filed by or with respect to the Company duly and each Subsidiary have been timely filed (taking into account any extensions) filed, and all such Tax Returns are true, correct and complete in all material respects.
(b) All material Taxes due and accurate and disclose all Taxes required to be paid by or payable with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure such Contributing Party’s Contributed Equity Interests (regardless of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementspaid in full.
(c) Neither the Company There is no action, suit, proceeding, investigation, audit or claim now pending against, or with respect to, such Contributing Party’s Contributed Equity Interests in respect of any material Tax or material Tax assessment, nor has any Subsidiary claim for additional material Tax or material Tax assessment been asserted in writing by any Governmental Authority.
(d) No written claim has been made by any Governmental Authority in a jurisdiction where a Tax Return is a party not currently filed with respect to such Contributing Party’s Contributed Equity Interests indicating that it is or may be subject to any claim, dispute, audit, pending Action or proceedingmaterial Tax in such jurisdiction, nor is has any such claim, dispute, Action assertion been threatened or proceeding threatened by proposed in writing.
(e) Such Contributing Party has no outstanding request for any Taxing authority, extension of time within which to pay any material Taxes or file any Tax Returns with respect to such Contributing Party’s Contributed Equity Interests.
(f) There has been no waiver or extension of any applicable statute of limitations for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any material Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdictionContributing Party’s Contributed Equity Interests.
(g) Neither the Company nor any Subsidiary has been Such Contributing Party is not a member of an affiliated group of corporations “foreign person” within the meaning of Section 1504(a) 1445 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law)There are no Tax Liens on such Contributing Party’s Contributed Equity Interests except for Permitted Liens.
(i) The Company isFor each Contributing Party that is a partnership, limited liability company, grantor trust or Subchapter S corporation under the Code, (i) for the period that the Contributing Party owns Equity Interests in WBR Holdings or OpCo, at no time during such period will “substantially all” (within the meaning of Treasury Regulation Section 1.7704-1(h)(3)) of the value of any beneficial owner’s interest in such Contributing Party be attributable to the Contributing Party’s ownership (direct or indirect) of such Equity Interests; and (ii) the applicable Contributing Party does not have, in acquiring such Equity Interests, a principal purpose of permitting WBR Holdings or OpCo to satisfy the 100 partner limitation in Treasury Regulation Section 1.7704-1(h)(1), and, to the best of such Contributing Party’s knowledge, no owner of a beneficial interest in such Contributing Party has at all times been, classified as such a corporation for U.S. federal income tax purposesprincipal purpose.
Appears in 1 contract
Sources: Contribution and Corporate Reorganization Agreement (WaterBridge Infrastructure LLC)
Tax. Except as set forth on Section 3.13 of the Company Disclosure Letter:
(a) All (i) all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be filed with any Tax Authority by or with respect to on behalf of the Company and each Subsidiary or any of its Subsidiaries have been timely filed (taking into account any extensionsextension of time within which to file) and in accordance with all applicable Laws; (ii) all such Tax Returns are complete and accurate and disclose complete in all respects and have been prepared in compliance with all applicable Laws; (iii) all Taxes due and payable by the Company or any of its Subsidiaries (including any Taxes that are required to be deducted and withheld in connection with any amounts paid by or with respect owing to the Company and each Subsidiary for the periods covered therebyany employee, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (shareholder, creditor, independent contractor or other third party), whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable , have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company or withheld and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent remitted to the periods to which such appropriate Tax Returns apply.
Authority; and (biv) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statements.
(c) Neither the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paid.
(d) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable applicable Laws relating related to the payment and withholding of Taxes, including sales Taxes and use Taxes, and has withheld and paid over all amounts required information reporting have been complied with by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable and each of its Subsidiaries except, in each case of clauses (i) through (iv), for any Taxes for failure to comply or Tax matters contested in good faith or that have been adequately provided for, in accordance with such Applicable Laws.GAAP, in the Company Balance Sheet;
(fb) No claim, or notice of claim, no written claim that has ever not been resolved has been made by an authority any Tax Authority in a jurisdiction where the Company or a Subsidiary any of its Subsidiaries does not file a Tax Returns Return that the Company or any of its Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction;
(c) there are no Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(i) no outstanding written claim has been received by, and to the Knowledge of the Company no such Subsidiary claim is threatened, and no audit, action, or proceeding is in progress, against or with respect to the Company or any of its Subsidiaries or any consolidated or combined group in which the Company or any of its Subsidiaries is or may be subject was included in respect of any Tax; and (ii) all deficiencies, assessments or proposed adjustments asserted against the Company or any of its Subsidiaries or any consolidated or combined group in which the Company or any of its Subsidiaries is or was included by any Tax Authority have been paid or fully and finally settled;
(e) neither the Company nor any of its Subsidiaries (i) has been, for any tax year for which the statute of limitations remains open, a member of an affiliated group (within the meaning of Section 1504 of the Code) or an affiliated, consolidated, combined, unitary, or aggregate group for state, local or foreign Tax purposes, other than a group of which the Company or any of its Subsidiaries is the common parent, (ii) has any Liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of state, local or foreign Tax Law), as a transferee or successor, by Contract or otherwise, or (iii) is a party to taxation by that jurisdiction.any Tax sharing, Tax allocation or Tax indemnification agreement (other than commercial agreements the primary purpose of which does not relate to Taxes);
(f) no waiver or extension of any statute of limitations in respect of Taxes or any extension of time with respect to a Tax assessment or deficiency is in effect for the Company or any of its Subsidiaries or any consolidated or combined group in which the Company or any of its Subsidiaries is or was included;
(g) Neither neither the Company nor any of its Subsidiaries participates or has participated in a “listed transaction,” “transaction of interest” or “reportable transaction” within the meaning of Section 1.6011-4(b) of the Regulations;
(h) neither the Company nor any of its Subsidiaries has entered into any “closing agreement” under Section 7121 of the Code, or other agreement with any Tax Authority in respect of Taxes that remains in effect, and no request for a ruling, relief, advice, or any other item that relates to the Taxes or Tax Returns of the Company or any of its Subsidiaries is currently pending with any Governmental Authority, and no such ruling, relief or advice has been obtained that is currently in effect;
(i) all transactions and agreements between or among any of the Company and its Affiliates are, and were entered into, in compliance with the requirements and principles of Section 482 of the Code and the Treasury Regulations thereunder, including any reporting requirements set forth thereunder, and are, and have been, in compliance with the requirements and principles of any comparable provisions of state, local or foreign law, including any reporting requirements set forth thereunder;
(j) neither the Company nor any of its Subsidiaries has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized;
(k) Section 3.13(k) of the Company Disclosure Letter identifies every election that has been made on the Company and any of its Subsidiaries under Treasury Regulations Section 301.7701-3(a) to adopt a U.S. federal tax classification other than the default classification, as well as the date of such election and the classification so elected; and
(l) during the past five (5) years neither the Company nor any Subsidiary has been a member the distributing or controlled corporation in any transaction intended to qualify under Section 355 of an affiliated group of corporations within the meaning of Code, and any such transaction set forth in the Disclosure Letter has in fact so qualified and has not resulted in gain recognition under Section 1504(a355(d) or (e) of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(i) The Company is, and has at all times been, classified as a corporation for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Merger Agreement
Tax. Intas hereby represents that:
(a) All Tax returns, Tax reports, information returns, declarations of estimated Tax BPD (i) has properly completed and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed (taking into account any extensionsor had timely filed on its behalf) all material foreign, federal, state, local and municipal Tax Returns required to be filed by it and all such Tax Returns are true, correct and complete and accurate and disclose in all material respects, (ii) has timely paid (or will timely pay) all Taxes required to be paid by or with respect it prior to the Company Closing Date or, in the case of Taxes not yet due and each Subsidiary for the periods covered therebypayable, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which has established in the Company Financial Statements an adequate accrual or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate reserve in accordance with GAAP for the payment of all material such Taxes and (iii) has no Liability for periods subsequent to Taxes in excess of the periods to which such Tax Returns applyamount of accruals or reserves so established in the Company Financial Statements.
(b) Except where such unpaid BPD has not received any written notification from any Tax would Authority regarding any issues that (i) are currently pending before any Tax Authority, or (ii) have been raised by any Tax Authority and not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsyet finally resolved.
(c) Neither No Encumbrances relating to Taxes are currently in effect against any of the Company nor any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection assets of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidBPD other than Permitted Encumbrances.
(d) No lien federal, state, local or foreign audit, examination or contest is presently pending with respect regard to any Taxes or Tax Returns of BPD and no such audit has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or any Subsidiary has been proposed, asserted or assessed against the Company or any Subsidiarythreatened in writing.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the payment and withholding assessment of Taxes, including sales and use Taxesany Taxes or deficiencies against BPD, and has withheld and paid over all amounts required by Applicable Laws no power of attorney granted with respect to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Lawsis currently in force.
(fg) No claimBPD is not a party to or bound by any Tax sharing, Tax indemnity, or notice of claimTax allocation agreement nor has any Liability or potential Liability to another party under any such agreement.
(h) Since 2004, no claim that has ever not been resolved has been made against BPD by an authority a Tax Authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary any one of them is or may be subject to taxation Tax by that jurisdiction.
(gi) Neither BPD has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(j) BPD has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying under Section 355 of the Company nor any Subsidiary has been Code (i) in the two (2) years prior to the date hereof or (ii) in a member distribution that could otherwise constitute part of an affiliated group a “plan” or “series of corporations related transactions” (within the meaning of Section 1504(a355(e) of the Code) in conjunction with the Acquisition.
(k) BPD is not a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code filing and has not been (and will not be) such a combined federal income Tax return United States real property holding corporation during the five (or any similar provision of non-U.S., state or local Law5) nor does year period ending on the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationClosing Date.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S., state or local Law).
(il) The Company ishas made available to Viropro or its legal or accounting representative copies of all Tax Returns filed for all periods including and after the period ended December 31, and has at all times been, classified as a corporation for U.S. federal income tax purposes2004.
Appears in 1 contract
Sources: Acquisition Agreement (Viropro Inc)
Tax. (a) (i) All federal and state Tax returns, Returns and all other material Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns that were or are required to be filed on or before the Closing Date by Parent or its Subsidiaries have been filed by or with respect to the Company and each Subsidiary have been will be timely filed (taking into account any extensions) on or before the Closing Date, and all such Tax Returns are or will be true, correct and complete in all material respects and accurate and disclose were or will be prepared in substantial compliance with all Applicable Laws; (ii) all Taxes required to be paid due and owing by Parent or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes its Subsidiaries (whether or not shown on the Tax Returns referred to in clause (i)) have been or will be timely paid in full on or before the Closing Date; (iii) all deficiencies asserted in writing or assessments made in writing by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) have been or will be timely paid in full on or before the Closing Date; and (iv) no issues that have been raised in writing (or otherwise to Parent's Knowledge) by the relevant Taxing Authority in connection with any of the Tax Returns referred to in clause (i) are pending as of the date of this Agreement, or, if pending, have been specifically identified by Parent to Parent and adequately reserved for in Parent Financial Statements. Neither Parent nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply.
(b) Except No federal, state, local or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to Parent or any of its Subsidiaries. Neither Parent nor its Subsidiaries has received from any federal, state, local or non-U.S. Taxing Authority (including jurisdictions where such unpaid Parent or its Subsidiaries have not filed Tax would not have a Material Adverse EffectReturns) any (i) written notice indicating an intent to open an audit or other review; (ii) request for information related to Tax matters; or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, there are no unpaid Taxes claimed to be due asserted or assessed by the any Taxing authority Authority against Parent or any of any jurisdiction, and the officers its Subsidiaries. Section 4.14(b) of the Company Parent Disclosure Letter lists all Tax Returns filed by Parent and its Subsidiaries for taxable periods ended on or after March 31, 2012, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit. Parent has received (or had made available to it) correct and complete copies of all federal and state income Tax Returns filed by Parent and each Subsidiary know of no basis its Subsidiaries for taxable periods ended on or after March 31, 2012 and all examination reports and statements of deficiencies related to federal and state income Tax assessed against or agreed to by Parent or any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed of its Subsidiaries with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods respect to and including the dates of such financial statementsthose taxable periods.
(c) There are no Liens on Parent’s or any of its Subsidiaries’ assets that arose in connection with any failure (or alleged failure) to pay any Tax other than Liens for Taxes not yet due and payable or which the validity thereof is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP in the Parent Financial Statements.
(d) Neither Parent nor any of its Subsidiaries has waived any statute of limitations in respect of income Taxes or agreed to any extension of time with respect to an income Tax assessment or deficiency.
(e) Parent and its Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Third Party.
(f) Except as listed on Section 4.14(f) of the Company Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is (or has been) a party to any Tax allocation or sharing agreement. Neither Parent nor any of its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Tax Return (other than a group the common parent of which was Parent); or (B) has any liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law) as a transferee, successor, by contract or otherwise. Any Tax allocation or sharing agreement that is listed on Section 4.14(f) of the Parent Disclosure Letter will be terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year). As of the Closing Date, Parent and its Subsidiaries shall have no further liability or claim under such Tax allocation or sharing agreements.
(g) Except as listed on Schedule 4.14(g) of the Parent Disclosure Letter, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Parent or any Subsidiary is a party to any claim, dispute, audit, pending Action or proceeding, nor and that is any such claim, dispute, Action or proceeding threatened by any Taxing authority, treated as a partnership for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidfederal income Tax purposes.
(dh) No lien with respect to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of the Company or Neither Parent nor any Subsidiary has, nor has been proposedit ever had, asserted a “permanent establishment” in any foreign country, as such term is defined in any applicable Tax treaty or assessed against convention between the Company United States and such foreign country, nor has it otherwise taken steps that have exposed, or any Subsidiarywill expose, it to the taxing jurisdiction of a foreign country.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.
(fi) No claim, or notice of claim, claim has ever been made in the last five (5) years by an authority a Taxing Authority in a jurisdiction where the Company Parent or a any Subsidiary does not file Tax Returns that the Company Parent (or such Subsidiary Subsidiary) is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual or legal basis for any such claim.
(gj) Neither the Company Parent nor any Subsidiary has, in the last five (5) years, distributed stock of another corporation, or had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(k) Neither Parent nor any Subsidiary is or has been a member United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) Neither Parent nor any Subsidiary participates in or cooperates with (or has at any time participated in or cooperated with) an affiliated group of corporations international boycott within the meaning of Section 1504(a) 999 of the Code filing a combined federal income Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationCode.
(hm) Neither the Company Parent nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation that, as of the date hereof, is a “reportable listed transaction” under Treasury Regulations Section 1.6011-4(b)(2). Parent and each Subsidiary have disclosed in their Tax Returns all information required by the provisions of the Treasury Regulations issued under Section 6011 of the Code and Treasury Regulations promulgated thereunder with respect to any “reportable transaction” as that term is defined in Section 6707A(c) of the Code.
(n) No gain recognition agreements have been entered into by either Parent or any Subsidiary, and, except as listed on Section 4.14(n) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has obtained a private letter ruling or closing agreements from the IRS (or any similar provision of non-U.S., state or local Lawcomparable ruling from any other Taxing Authority).
(o) Neither Parent nor any Subsidiary is or has at any time been (A) a “controlled foreign corporation” as defined by Section 957 of the Code; (B) a “personal holding company” as that term has been defined from time to time in Section 542 of the Code; or (C) a “passive foreign investment company” nor has Parent or any Subsidiary at any time held directly, indirectly, or constructively shares of any “passive foreign investment company” as that term has been defined from time to time in Section 1296 or 1297 of the Code.
(p) Parent and each Subsidiary is in full compliance with all the terms and conditions of any Tax exemption or other Tax reduction agreement or order of a foreign or state government and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or other Tax reduction agreement or order.
(q) Except as listed on Section 4.14(q) of the Parent Disclosure Letter, there is no agreement, contract or arrangement to which Parent or any Subsidiary is a party that would, individually or collectively, result in the payment of any amount that would not be deductible by reason of Sections 162 (other than 162(a)), or 404 of the Code.
(r) Neither Parent nor any Subsidiary has been, nor will any of them be, required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date (i) The Company ispursuant to Section 481 of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions, events, or accounting methods employed prior to the transactions contemplated hereby, (ii) as a result of any installment sale or open transaction disposition made on or prior to the Closing Date, (iii) as a result of any prepaid amount received on or prior to the Closing Date, (iv) as a result of an election under Section 108(i) of the Code or (v) as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(s) Parent and its Subsidiaries have complied in all material respects with all applicable unclaimed property Laws. Without limiting the generality of the foregoing, Parent and each Subsidiary has established and followed procedures to identify any unclaimed property and, to the extent required by Law, remit such unclaimed property to the applicable Governmental Entity. Parent’s and each Subsidiary’s records are adequate to permit a Governmental Entity or other outside auditor to confirm the foregoing representations.
(t) All transactions for taxable years for which the statute of limitations is still open (including but not limited to sales of goods, loans, and provision of services) between (i) Parent or any Subsidiary and (ii) any other Person that is controlled directly or indirectly by Parent (within the meaning of Section 482 of the Code) were effected on arms’-length terms and for fair market value consideration.
(u) The unpaid Taxes of Parent and each Subsidiary (i) did not exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of Parent Financial Statements (rather than in any notes thereto) and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Parent and each Subsidiary in filing its Tax Returns. Since the filing of Parent Financial Statements, neither Parent nor any Subsidiary has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) Parent operates at least one significant historic business line, or owns at least a significant portion of its historic business assets, in each case within the meaning of Treasury Regulations Section 1.368-1(d).
(w) Parent has provided or otherwise made available to Parent all times beenof Parent’s and its Subsidiaries’ books and records with respect to Tax matters pertinent to Parent or its Subsidiaries relating to any Tax periods commencing on or before the Closing Date including all Tax opinions relating to and in the audit files of Parent or its Subsidiaries that have been received since December 31, classified as a corporation for U.S. federal income tax purposes2011.
Appears in 1 contract
Tax. (a) All Each Group Company has complied with all its duties under all Tax legislation, kept made or filed with all appropriate Tax Authorities all Tax returns, disclosures, notices and Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) reports required to have been be filed or made by applicable law on or with respect before the date hereof and supplied all other information required by law to the Company and each Subsidiary have been timely filed (taking into account any extensions) be supplied to all relevant Tax Authorities, and all such information, Tax Returns are complete returns, notices and disclosures were submitted within applicable time limits and were accurate and disclose all Taxes required to be paid by or with respect to the Company and each Subsidiary for the periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of complete in all material Taxes for periods subsequent to the periods to which such Tax Returns applyrespects.
(b) Except where such unpaid Each Group Company has duly paid within the applicable time limits all Tax would not to the extent that the same ought to have a Material Adverse Effectbeen paid and no Group Company is liable, there are no unpaid Taxes claimed nor has it been liable, to be due by the Taxing authority of pay any jurisdictionfine, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payablesurcharge, if any, shown on the financial statements filed penalty or interest in connection with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates payment of such financial statementsTax.
(c) Neither None of the Company nor Group Companies is, so far as the Sellers are aware, the subject of any Subsidiary is a party to any claim, dispute, auditmaterial investigation or proceeding with or by any Tax Authority and there are no facts or circumstances likely to give rise to or be the subject of any such dispute, pending Action material investigation or proceeding, nor is . No Group Company has received any such claim, dispute, Action or proceeding threatened by any Taxing authority, for the assessment or collection written notice of any Taxes and no claim for the assessment Tax Authority’s intent to conduct an investigation, visit, enquiry or collection of any Taxes has been asserted against the Company or any Subsidiary that has not been settled with all amounts due having been paidaudit.
(d) No lien with respect Each Group Company has within applicable time limits duly submitted all claims, disclaimers, elections, surrenders and applications which have been assumed to Taxes has have been filed and no deficiency or addition to Taxes, interest or penalties made for any Taxes with respect to any income, properties or operations the purposes of the Company or any Subsidiary has been proposed2013 Audited Accounts. Details of such claims, asserted or assessed against disclaimers, elections, surrenders and applications are set out in the Company or any SubsidiaryDisclosure Documents.
(e) The 2013 Audited Accounts, as at the Accounts Date, make full provision or reserve in respect of any period ended on or before the Accounts Date for all Tax assessed or liable to be assessed on each Group Company and each Subsidiary or for which it is accountable at the Accounts Date whether or not it has complied in all material respects with all Applicable Laws relating to the payment and withholding or may have any right of Taxes, including sales and use Taxesreimbursement against any other person, and proper provision has withheld been made and paid over all amounts required by Applicable Laws to be withheld and paid from shown in the wages or salaries of employees, and neither 2013 Audited Accounts as at the Company nor any Subsidiary is liable Accounts Date for any Taxes for failure to comply deferred Tax in accordance with such Applicable Lawsthe relevant generally accepted accounting principles.
(f) No claimTaxation Authority has agreed with any Group Company to operate any special arrangement (being an arrangement which is not based on relevant legislation or any published practice) in relation to the affairs of any Group Company.
(g) Each Group Company has, on or notice before the relevant due date, complied with its obligations to deduct, withhold or retain amounts of claim, has ever been or on account of Tax from any payments made by an authority it and to account for such amounts to the relevant Tax Authority and has complied with all its reporting obligations to the relevant Tax Authority.
(h) Each Group Company is and has at all times been resident for Tax purposes in a the jurisdiction where in which it was incorporated and no Group Company is nor has at any time been treated as resident in any other jurisdiction for any Tax purpose (including for the purpose of any double tax treaty). No Group Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be is, nor has it ever been, subject to taxation Tax in any jurisdiction other than its place of incorporation by virtue of having a permanent establishment or other place of business in that jurisdiction.
(gi) Neither the All transactions entered into by a Group Company nor have been entered into on an arm’s length basis. No notice or enquiry by any Subsidiary Tax Authority has been made in connection with the arm’s length nature of any transaction entered into by any Group Company.
(j) No Group Company will become liable to pay any Tax as a result of Completion.
(k) No transaction, act, omission or event has occurred in consequence of which any Group Company is or, so far as the Sellers are aware, may be held liable for any Tax or may otherwise be held liable for or to indemnify any person in respect of Tax which is primarily or directly chargeable against or attributable to any person other than the Group Company.
(l) No Group Company is, nor has it ever been, a member of an affiliated group of corporations within the meaning of Section 1504(a) of the Code filing a combined federal income group, fiscal unity or similar entity or association for any Tax return (or any similar provision of non-U.S., state or local Law) nor does the Company or any Subsidiary of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar provision of non-U.S., state or local Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporationpurpose.
(hm) Neither Each Group Company has complied in all respects with the Company nor any Subsidiary has engaged terms of applicable Laws in respect of VAT (including, for the avoidance of doubt, applicable registration requirements in any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 jurisdiction) and the Disclosure Documents contain full details of any VAT registrations of the Code and Treasury Regulations promulgated thereunder (Group Companies. No any Group Company is an agent or any similar provision of non-U.S., state or local Law)fiscal representative for VAT Purposes.
(in) All documents which any Group Company needs in order to provide title to any asset have been duly stamped and all applicable stamp duty, interest and penalties have been duly paid.
(o) The Company is, Sellers’ representations and has at all times been, classified as a corporation for U.S. federal income tax purposeswarranties set forth in this subsection 16 are the only representations and warranties given in respect of Tax.
Appears in 1 contract
Tax. (a) All The Company and each Subsidiary has duly and timely made or prepared all Tax returns, Tax reports, information returns, declarations of estimated Tax and other declarations and statements with respect to Taxes (collectively, “Tax Returns”) Returns required to have been be made or prepared by it, has duly and timely filed all Tax Returns required to be filed by it with the appropriate Governmental Body and has duly, completely and correctly reported all income and all other amounts and information required to be reported thereon.
(b) The Company and each Subsidiary has duly and timely paid all Taxes, including all instalments on account of Taxes for the current year, that are due and payable by it whether or with respect not assessed by the appropriate Governmental Body. Provision has been made on the Latest Balance Sheets for amounts at least equal to the amount of all Taxes owing by the Company and each Subsidiary have been timely filed (taking into account any extensions) that were not yet due and all such Tax Returns are complete payable by the Latest Balance Sheets Date and accurate and disclose that relate to periods ending on or prior to the Latest Balance Sheets Date. Provision will be made on the Closing Balance Sheet for amounts at least equal to the amount of all Taxes required to be paid owing by or with respect to the Company and each Subsidiary for that will not be due and payable by the Closing Date and that relate to periods covered thereby, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether ending on or not shown on any Tax Return) for which the Company or any Subsidiary may be liable have been timely paid, except for Taxes the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent prior to the periods to which such Tax Returns apply.
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions for Taxes payable, if any, shown on the financial statements filed with the SEC Documents are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all periods to and including the dates of such financial statementsClosing Date.
(c) Neither the Company nor any Subsidiary is a party has requested, offered to enter into or entered into any claimagreement or other arrangement, disputeor executed any waiver, audit, pending Action or proceeding, nor is providing for any such claim, dispute, Action or proceeding threatened by extension of time within which (i) to file any Taxing authority, for the assessment or collection of Tax Return covering any Taxes and no claim for the assessment or collection of any Taxes has been asserted against which either the Company or any Subsidiary that has not been settled with all amounts due having been paid.
is or may be liable; (dii) No lien with respect to file any elections, designations or similar filings relating to Taxes has been filed and no deficiency or addition to Taxes, interest or penalties for any Taxes with respect to any income, properties or operations of which either the Company or any Subsidiary has been proposed, asserted is or assessed against may be liable; (iii) either the Company or any Subsidiary.
(e) The Company and each Subsidiary has complied in all material respects with all Applicable Laws relating is required to the payment and withholding pay or remit any Taxes or amounts on account of Taxes, including sales and use Taxes, and has withheld and paid over all amounts required by Applicable Laws to be withheld and paid from the wages ; or salaries of employees, and neither the Company nor (iv) any Subsidiary is liable for any Governmental Body may assess or collect Taxes for failure to comply with such Applicable Laws.
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where which either the Company or a Subsidiary does not file Tax Returns that the Company or such any Subsidiary is or may be subject to taxation by that jurisdictionliable.
(gd) Neither the Company nor any Subsidiary has been a member made, prepared and/or filed any elections, designations or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of an affiliated group of corporations within Taxes or Tax Returns that has effect for any period ending after the meaning of Section 1504(aClosing Date.
(e) All income, sales (including goods and services, harmonized sales and provincial or territorial sales) and capital Tax liabilities of the Code filing a combined federal income Tax return Company and each Subsidiary have been assessed by the relevant Governmental Bodies and notices of assessment have been issued to the Company and each Subsidiary by the relevant Governmental Bodies for all taxation years or periods ending prior to and including the taxation year or period ended January 31, 2012.
(f) There are no proceedings, investigations, audits or any similar provision of non-U.S., state claims now pending or local Law) nor does threatened against either the Company or any Subsidiary of the Company have any liability for Taxes in respect of any Taxes and there are no matters under discussion, audit or appeal with any Governmental Body relating to Taxes.
(g) The Company and each Subsidiary has duly and timely withheld all Taxes and other Person under Treasury Regulations § 1.1502-6 amounts required by Law to be withheld by it (including Taxes and other amounts required to be withheld by it in respect of any amount paid or credited or deemed to be paid or credited by it to or for the account or benefit of any similar provision of Person, including any Employee, officer or director and any non-U.S.resident Person), state or local Law) or otherwise, and has duly and timely remitted to the appropriate Governmental Body such Taxes and other than the consolidated group of which the Company is currently the parent corporationamounts required by Law to be remitted by it.
(h) The Company and each Subsidiary has duly and timely collected all amounts on account of any sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Body any such amounts required by Law to be remitted by it.
(i) Except pursuant to this Agreement or as specifically disclosed in writing to Buyer, for purposes of the Tax Act or any other applicable Tax statute, no Person or group of Persons has ever acquired or had the right to acquire control of the Company.
(j) None of sections 78, 80, 80.01, 80.02, 80.03 or 80.04 of the Tax Act, or any equivalent provision of the Tax legislation of any province or any other jurisdiction, have applied or will apply to either the Company or any Subsidiary at any time up to and including the Closing Date.
(k) Neither the Company nor any Subsidiary has engaged acquired property from a non-arm’s length Person, within the meaning of the Tax Act, for consideration, the value of which is less than the fair market value of the property acquired in any transaction that circumstances which could give rise subject it to a disclosure obligation as a “reportable transaction” liability under Section 6011 section 160 of the Code and Treasury Regulations promulgated thereunder Tax Act.
(l) For all transactions between either the Company or any similar provision of Subsidiary and any non-U.S.resident Person with whom either the Company or such Subsidiary was not dealing at arm’s length during a taxation year commencing after 1998 and ending on or before the Closing Date, state either the Company or local Lawsuch Subsidiary, as applicable, has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act.
(m) The Company is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax and under Division I of Chapter VIII of Title I of the Quebec Sales Tax Act with respect to the Quebec sales tax. The Company’s registration number is for the purposes of the Excise Tax Act (Canada) is 85307 8426 RT0001.
(n) The only reserves under the Tax Act or any equivalent provincial or territorial statute to be claimed by either the Company or any Subsidiary for the taxation year ended immediately prior to the acquisition of control by Buyer are disclosed in Schedule 5.15(n).
(io) The Buyer has been provided with copies of all Tax Returns and all communications to or from any Governmental Body relating to the Taxes of the Company isand any Subsidiary, and has at all times been, classified as a corporation for U.S. to the extent relating to periods or events in respect of which any Governmental Body may by Law assess or otherwise impose any such Tax on the Company or any Subsidiary. Schedule 5.15(o) sets forth the following federal income tax purposesinformation as of the most recent practicable date: (i) the basis of the Company and each Subsidiary in its assets; and (ii) the amount of any non-capital losses available for carryover, net capital losses, and unused investment or other credit of the Company and each Subsidiary.
(p) Neither the Company nor any Subsidiary does, or has in the past five years, conducted any business or had any offices, operations (including with respect to the Business), Employees or other agents or representatives in the United States or in any other jurisdiction other than Canada.
Appears in 1 contract
Sources: Share Purchase Agreement (American Tire Distributors Holdings, Inc.)
Tax. Except as would not reasonably be expected to have a Parent Material Adverse Effect and except as otherwise set forth in Section 4.10 of the Parent Disclosure Letter:
(a) All (i) all Tax returnsReturns required to be filed by or on behalf of Parent or any of its Subsidiaries (and, to the Knowledge of Parent, all Tax reports, information returns, declarations of estimated Tax Returns required to be filed by any Person (other than the Company and other declarations and statements its Subsidiaries) with respect to Taxes (collectivelyor on behalf of any affiliated, “consolidated, combined, unitary or similar group for Tax Returns”purposes of which Parent or any of its Subsidiaries is or has been a member) required to have been filed by or with respect to the Company and each Subsidiary have been timely filed when due (taking into account any extensionsextension of time within which to file) and in accordance with all applicable Laws; (ii) all such Tax Returns are complete and true, accurate and disclose complete in all respects and have been prepared in compliance with all applicable Laws; and (iii) all Taxes due and payable by Parent or any of its Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid by or with respect to the Company and each Subsidiary for the periods covered therebyowing to, except for Tax Returns the failure of which to file would not have a Material Adverse Effect. All Taxes (whether or not shown on received or owing from, any Tax Returnemployee, creditor, customer, independent contractor or other third party) for which the Company or any Subsidiary may be liable have been timely paid, except or collected, deducted and withheld and remitted to the appropriate Tax Authority; except, in the case of each of clauses (i) through (iii), for Taxes or Tax matters contested in good faith and that have been adequately provided for, in accordance with GAAP, in the failure of which to pay would not have a Material Adverse Effect. The Company and each Subsidiary have set aside on its books provision reasonably adequate for the payment of all material Taxes for periods subsequent Parent SEC Documents filed prior to the periods to which such Tax Returns apply.date hereof;
(b) Except where such unpaid Tax would not have a Material Adverse Effect, there are no unpaid Taxes claimed to be due by the Taxing authority of any jurisdiction, accruals and the officers of the Company and each Subsidiary know of no basis for any such claim. The provisions reserves for Taxes payable, if any, shown on reflected in the consolidated financial statements filed with included in the Parent SEC Documents are sufficient for all accrued and unpaid Taxesadequate, whether or not disputedin accordance with GAAP, and cover all Taxes of Parent and its Subsidiaries for all periods (or portions thereof) ending on or prior to and including the dates date of such consolidated financial statements.;
(c) Neither the Company nor any Subsidiary is a party to any claimsince January 1, dispute2013, audit, pending Action or proceeding, nor is any such claim, dispute, Action or proceeding threatened no written claim has been made by any Taxing authority, for the assessment or collection of any Taxes and no claim for the assessment or collection of any Taxes has been asserted against the Company Tax Authority in a jurisdiction where Parent or any Subsidiary of its Subsidiaries does not file a Tax Return that has not been settled with all amounts due having been paid.Parent or any of its Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction;
(d) No lien with respect to Taxes has been filed and there are no deficiency or addition to Taxes, interest or penalties for Encumbrances on any Taxes with respect to any income, properties or operations of the Company assets of Parent or any Subsidiary has been proposed, asserted of its Subsidiaries that arose in connection with any failure (or assessed against the Company or alleged failure) to pay any Subsidiary.Tax (except for Permitted Encumbrances);
(e) The Company and each Subsidiary (i) no outstanding written claim has complied in all material respects with all Applicable Laws relating to the payment and withholding of Taxes, including sales and use Taxesbeen received by, and has withheld no audit, action or proceeding is in progress, against or with respect to Parent or any of its Subsidiaries in respect of any Tax; and (ii) all deficiencies, assessments or proposed adjustments asserted against Parent or any of its Subsidiaries by any Tax Authority have been paid over all amounts required by Applicable Laws to be withheld or fully and paid from the wages or salaries of employees, and neither the Company nor any Subsidiary is liable for any Taxes for failure to comply with such Applicable Laws.finally settled;
(f) No claim, or notice of claim, has ever been made by an authority in a jurisdiction where the Company or a Subsidiary does not file Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(g) Neither the Company neither Parent nor any Subsidiary of its Subsidiaries (i) has been been, since January 1, 2009, a member of an affiliated group of corporations (within the meaning of Section 1504(a) 1504 of the Code filing Code) or an affiliated, consolidated, combined, unitary, aggregate or similar group for state, local or foreign Tax purposes, other than a combined federal income Tax return group of which Parent or any of its Subsidiaries is the common parent, (ii) has any Liability for the Taxes of any Person (other than Parent or any of its Subsidiaries) under Section 1.1502-6 of the Regulations (or any similar provision of non-U.S.state, state local or local foreign Tax Law), as a transferee or successor or by Contract or (iii) nor is a party to any Tax sharing, Tax allocation or Tax indemnification agreement (other than commercial agreements the primary purpose of which does the Company not relate to Taxes);
(g) no waiver or extension of any statute of limitations in respect of Taxes or any Subsidiary extension of time with respect to a Tax assessment or deficiency is in effect for Parent or any of its Subsidiaries;
(h) neither Parent nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of any (i) adjustment pursuant to Section 481(c) of the Company have any liability for Taxes of any other Person under Treasury Regulations § 1.1502-6 Code (or any similar provision of non-U.S.state, state local or local foreign Law) or otherwise, other than the consolidated group of which the Company is currently the parent corporation.
(h) Neither the Company nor any Subsidiary has engaged in any transaction that could give rise to a disclosure obligation as a result of a change in method of accounting made prior to the Closing, (ii) installment sale, intercompany transaction or open transaction disposition made on or entered into prior to the Closing, (iii) prepaid amount received on or prior to the Closing, (iv) “reportable transactionclosing agreement” under within the meaning of Section 6011 7121 of the Code and Treasury Regulations promulgated thereunder (or any similar provision of non-U.S.state, state local or foreign Law) entered into prior to the Closing or (v) election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law).;
(i) The Company isneither Parent nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code in a distribution intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) which distribution is part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) with the transactions contemplated by this Agreement;
(j) neither Parent nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Regulations or any similar provision of state, and has at all times been, classified as local or foreign Law;
(k) Parent is not controlled by a corporation “non-resident corporation” for U.S. federal income tax purposespurposes of Section 212.3 of the Income Tax Act (Canada).
Appears in 1 contract
Sources: Merger Agreement (Lions Gate Entertainment Corp /Cn/)