Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule: (a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith. (b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof. (c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect. (d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened. (e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid. (f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force. (g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes. (h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent. (i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law. (j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries. (k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 5 contracts
Sources: Merger Agreement (Cameron Ashley Building Products Inc), Merger Agreement (Guardian Fiberglass Inc), Merger Agreement (CBP Holdings Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All material Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to Kemmerer and the date of this AgreementAssets have been timely filed, and each all such Tax Return is Returns are complete and correct and complete in all material respects respects, and (ii) duly all material Taxes due and payable by or with respect to the Assets have been paid in full or, made adequate accruals and reserves in its books and records in accordance or adequately accrued. The time for filing any Tax Return to be filed with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior respect to the date of this Agreement, except for those Taxes being contested in good faithAssets has not been extended.
(b) There are no Liens for Taxes upon any property material disputes or assets of the Company claims (other than disputes or any Subsidiary thereof, except for Liens for Taxes not yet due claims being contested in good faith through appropriate proceedings and for which adequate reserves have been established made in accordance with GAAP GAAP) with full provision made respect to Kemmerer or the Assets for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries Taxes, and no material assessment, deficiency, or adjustment has made any change been asserted or proposed in accounting methods, received a ruling from any Tax Authority or signed an agreement writing with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard respect to any Taxes or Tax Returns of or with respect to Kemmerer and the Company Assets.
(c) No material Tax audits or any of its Subsidiaries andadministrative or judicial proceedings have been or are being conducted, or, to the knowledge Knowledge of Contributor, are pending or are proposed with respect to Kemmerer and the Assets.
(d) There are no Liens for Taxes on any of the CompanyMembership Interests and the Assets other than, no such Audit is threatenedin the case of the Assets, Permitted Liens.
(e) An Audit of each United States federal income Tax Return of All material Taxes required to be withheld, collected or deposited by or with respect to Kemmerer and the Company Assets have been timely withheld, collected or any of its Subsidiaries has deposited, as the case may be, and, to the extent required, have been completed by paid to the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidrelevant taxing authority.
(f) There are no agreements, consents outstanding agreements or waivers to extend extending the applicable statutory period periods of limitations applicable to the assessment or payment of limitation for any material Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries associated with respect to Kemmerer or the Assets for any Taxes is in forceperiod.
(g) Neither Contributor is not a “foreign person” as defined in Section 1445(f)(3) of the Company nor any of its Subsidiaries is a party toCode, and the rules and Treasury Regulations promulgated thereunder, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxesan entity disregarded as separate from its owner for United States federal income tax purposes.
(h) The CompanyFor United States federal income tax purposes, Kemmerer was a “C” corporation from the date of incorporation until the date immediately prior to the Conversion, and on and after the Conversion, Kemmerer is an entity disregarded as the common parent of an affiliated group of corporations separate from its owner.
(as defined in Section 1504 i) At least 90% of the Code) consisting solely of gross income generated by the Company and the Subsidiaries Assets is income that are "includable corporations" (constitutes “qualifying income” within the meaning of Section 1504(b7704(d) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect There are no (i) obligations to make a payment to any matter relating Person under any Tax allocation or Tax-sharing agreement; (ii) obligations to pay the Taxes that could affect the Company of any Person as a transferee or successor, by contract or otherwise; including an obligation under Treasury Regulations Section 1.1502-6 (or any similar provision of its Subsidiariesstate, local or foreign Law); (iii) obligations under any record retention, transfer pricing, closing or other agreement or arrangement with any taxing authority that will survive the Closing.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing None of the Merger for the payment Assets includes any equity interests in or of any amount described in Section 162(m)(1) Person, and none of the Assets are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code.
Appears in 5 contracts
Sources: Contribution Agreement, Contribution Agreement (Westmoreland Resource Partners, LP), Contribution Agreement (WESTMORELAND COAL Co)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company EPI and its Subsidiaries has (i) duly have filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by applicable Law, maintained all documents and records relating to Taxes as are required to be made or provided or maintained by it on or prior and has complied in all respects with all legislation relating to Taxes applicable to it. All Tax Returns were in all respects (and, as to Tax Returns not filed as of the date of this Agreementhereof, will be) true, complete and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in filed on a timely basis. Neither EPI nor any of its books and records in accordance with GAAP with full provision (or there has been paid or such provision Subsidiaries is aware that any claim has been made on by an authority of a jurisdiction where EPI or any of its behalf for Subsidiaries does not file Tax Returns that any of EPI or any of its sole benefit and recourse) for the payment of, all Taxes for all periods ending on Subsidiaries is or prior may be subject to the date of this Agreement, except for those Taxes being contested in good faithtaxation by that jurisdiction.
(b) EPI and each Subsidiary has, within the time and in the manner prescribed by law, paid (and until the Closing Date will pay within the time and in the manner prescribed by law) all Taxes that are due and payable.
(c) EPI and each Subsidiary has established (and until the Closing Date will maintain) on its Books and Records reserves adequate to pay all Taxes not yet due and payable in accordance with International Accounting Standards that are reflected in the EPI Audited Financial Statements to the extent required.
(d) There are no Tax Liens for Taxes upon any property or the assets of the Company EPI or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofdue.
(ce) Neither Except as disclosed in Section 2.9 of the Company nor any of its Subsidiaries has made any change in accounting methodsDisclosure Schedule, received a ruling from any Tax Authority no audits or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company EPI or any of its Subsidiaries, and no power of attorney applicable to either the Company Tax Authority has notified EPI or any of its Subsidiaries with respect that it intends to any Taxes is in forceinvestigate its Tax affairs.
(gf) Neither Notwithstanding the Company nor disclosure of any matter on Section 2.9 of the Disclosure Schedule pursuant to clause (e) above, EPI and its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy have complied (and until the Closing Date will comply) in all respects with the provisions of applicable law relating to the allocation, indemnification or sharing payment and withholding of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (have, within the meaning of Section 1504(b) of time and in the Code)manner prescribed by law, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself withheld and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid over to the appropriate Tax Authority, proper Governmental or Regulatory Authority all amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated required in connection with the closing of the Merger for the payment of amounts paid or owing to any amount described in Section 162(m)(1) of the Codeemployee, independent contractor, creditor, shareholder or other third party.
Appears in 5 contracts
Sources: Share Exchange Agreement (Mastercard Inc), Share Exchange Agreement (Mastercard Inc), Share Exchange Agreement (Mastercard Inc)
Taxes. Except as set forth disclosed in Section 3.16 of the Company Registration Statement, the General Disclosure Schedule:
(a) Each Package and the Prospectus, each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns returns (as hereinafter defined) required to be filed by it on or with taxing authorities prior to the date hereof or has duly obtained extensions of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) time for the payment offiling thereof (except where the failure to file would not, all Taxes for all periods ending on individually or prior to in the date of this Agreementaggregate, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit and has paid all taxes (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes shown as due on such returns that were filed and has paid all material taxes imposed on or Tax Returns of assessed against the Company or any such subsidiary (except for cases in which the failure to pay would not have a Material Adverse Effect, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of its Subsidiaries andthe Company). The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, for all periods to and including the dates of such consolidated financial statements. Except as disclosed in writing to the Underwriters and to the knowledge of the Company, (i) no such Audit is threatened.
material issues have been raised (eand are currently pending) An Audit by any taxing authority in connection with any of each United States federal income Tax Return of the returns or taxes asserted as due from the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and (ii) no power waivers of attorney applicable statutes of limitation with respect to either the returns or collection of taxes have been given by or requested from the Company or any of its Subsidiaries with respect Subsidiaries. In addition, except as disclosed in the Registration Statement, the General Disclosure Package and Prospectus, no transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable in Hong Kong or the Cayman Islands to any Taxes is Hong Kong or Cayman Islands taxing authority in force.
connection with (gi) Neither the Company nor any of its Subsidiaries is a party toissuance, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 sale and delivery of the CodeSecurities to or for the account of the purchasers, and (ii) consisting solely of the purchase from the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) sale and delivery of the Code)Securities to purchasers thereof. The term “taxes” means all federal, has state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required to be filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group with relevant taxing authorities in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawtaxes.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 5 contracts
Sources: Underwriting Agreement (Autozi Internet Technology (Global) Ltd.), Underwriting Agreement (Autozi Internet Technology (Global) Ltd.), Underwriting Agreement (Autozi Internet Technology (Global) Ltd.)
Taxes. (a) Except as set forth may be specified in Section 3.16 4.11(a) of the Company Disclosure Schedule:
, (ai) Each each of the Company and its Subsidiaries has duly and timely filed all Tax Returns required to have been filed by or with respect to the Company or such Subsidiary, (ii) each such Tax Return correctly and completely reflects all liability for Taxes and all other information required to be reported thereon, (iii) all Taxes owed by the Company and each Subsidiary of the Company (whether or not shown on any Tax Return) have been timely paid, and (iv) each of the Company and its Subsidiaries has adequately provided for, in its books of account and related records, all Liability for unpaid Taxes, being current Taxes not yet due and payable.
(b) Except as may be specified in Section 4.11(b) of the Company Disclosure Schedule, each of the Company and its Subsidiaries has withheld and timely paid all Taxes required to have been withheld and paid by it and has complied with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto.
(c) Except as may be specified in Section 4.11(c) of the Company Disclosure Schedule, neither Company nor any of its Subsidiaries (i) duly filed is the beneficiary of any extension of time within which to file any Tax Return, nor has Company or any of its Subsidiaries made (or there have been filed had made on its behalf) any requests for such extensions, or (ii) has waived (or is subject to a waiver of) any statute of limitations in respect of Taxes or has agreed to (or is subject to) any extension of time with respect to a Tax assessment or deficiency.
(d) Section 4.11(d) of the appropriate Tax Authorities (as hereinafter defined) all Company Disclosure Schedule indicates those Tax Returns that have been audited and those Tax Returns that currently are the subject of audit. Except as set forth in Section 4.11(d) of the Company Disclosure Schedule (i) there is no Action now pending or threatened against or with respect to the Company or any of its Subsidiaries in respect of any Tax or any assessment or deficiency, and (ii) there are no liens for Taxes (other than current Taxes not yet due and payable) upon the assets of the Company.
(e) Section 4.11(e) of the Company Disclosure Schedule lists, as hereinafter defined) required to be filed by it on or prior to of the date of this Agreement, and each such all jurisdictions in which the Company or any of its Subsidiaries currently files Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision Returns. No claim has been made on by any Taxing Authority in a jurisdiction where the Company or any of its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on Subsidiaries does not file Tax Returns that any of them is or prior may be subject to the date taxation by that jurisdiction or that any of this Agreement, except for those Taxes being contested in good faiththem must file Tax Returns.
(bf) There are no Liens for Taxes upon any property None of the assets or assets properties of the Company or any Subsidiary thereofof its Subsidiaries constitutes tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code. Neither the Company nor any of its Subsidiaries is a party to any “safe harbor lease” within the meaning of Section 168(f)(8) of the Code, except for Liens for Taxes not yet due as in effect prior to amendment by the Tax Equity and for which adequate reserves have been established in accordance with GAAP with full provision made for Fiscal Responsibility Act of 1982, or to any “long-term contract” within the payment thereof.
(c) meaning of Section 460 of the Code. Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received ever been a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(dUnited States real property holding corporation within the meaning of Section 897(c)(2) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Code. Company or any is not a “foreign person” within the meaning of its Subsidiaries and, to the knowledge Section 1445 of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceCode.
(g) Neither the Company nor any of its Subsidiaries has agreed to or is required to make by reason of a party tochange in accounting method or otherwise, or is bound bycould be required to make by reason of a proposed or threatened change in accounting method or otherwise, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(hadjustment under Section 481(a) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of . Neither the Company and nor any of its Subsidiaries has been the Subsidiaries that are "includable corporations" “distributing corporation” (within the meaning of Section 1504(b355(c)(2) of the Code)) with respect to a transaction described in Section 355 of the Code within the 5-year period ending as of the date of this Agreement.
(h) No Subsidiary of the Company that is incorporated in a non-U.S. jurisdiction has, or at any time has filed since 1994 a consolidated return for had, an investment in “United States federal income Tax purposes on behalf property” within the meaning of itself and such Subsidiaries Section 956(c) of the Code. No Subsidiary of the Company is, or at any time has been, a passive foreign investment company within the meaning of Section 1297 of the Code and neither Company nor any of its Subsidiaries is a shareholder, directly or indirectly, in a passive foreign investment company. No Subsidiary of the Company that is incorporated in a non-U.S. jurisdiction is, or at any time has been, engaged in the conduct of a trade or business within the United States, or treated as or considered to be so engaged.
(i) Neither the Company nor any of such its Subsidiaries (i) has ever been a party to any Tax allocation or sharing agreement or Tax indemnification agreement, (ii) has ever been a member of an affiliated group filing a consolidated United States federal affiliated, consolidated, condensed or unitary group, or (iii) has any Liability for or obligation to pay Taxes of any other Person under Treas. Reg. 1.1502-6 (or any similar provision of Tax Return other than the affiliated group in which they are currently members and of which Law), or as transferee or successor, by Contract or otherwise. Neither the Company is the common parent.
(i) With respect to completed pay periods, the Company and each nor any of its Subsidiaries has withheld from its employeesis a party to any joint venture, independent contractorspartnership, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawor other arrangement that is treated as a partnership for federal income tax purposes.
(j) No power Neither the Company nor any of attorney is currently 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 Effective Time as a result of any: (i) intercompany transactions or excess loss accounts described in force Treasury regulations under Section 1502 of the Code (or any similar provision of state, local, or foreign Tax Law), (ii) installment sale or open transaction disposition made on or prior to the Effective Time, or (iii) prepaid amount received on or prior to the Effective Time.
(k) The Company has not entered into any transaction that constitutes a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
(l) Section 4.11(l) of the Company Disclosure Schedule lists each person who the Company reasonably believes is, with respect to the Company or any matter relating Affiliate of the Company, a “disqualified individual” within the meaning of Section 280G of the Code and the Regulations thereunder.
(m) Neither the Company nor, to Taxes the Knowledge of Company, any of its Affiliates has taken or agreed to take any action (other than actions contemplated by this Agreement) that could affect would reasonably be expected to prevent the Merger from constituting a “reorganization” under Section 368 of the Code. The Company is not aware of any agreement or plan to which the Company or any of its Subsidiaries.
(k) Neither Affiliates is a party or other circumstances relating to the Company nor or any Subsidiary shall become obligated in connection with the closing of its Affiliates that could reasonably be expected to prevent the Merger for the payment of any amount described in from so qualifying as a “reorganization” under Section 162(m)(1) 368 of the Code.
(n) Except as may be specified in Section 4.11(l) of the Company Disclosure Schedule, the unpaid Taxes of the Company (i) did not, as of the date of the Most Recent Company Balance Sheet, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Company 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 Company in filing its Tax Returns. Since the date of the Most Recent Company Balance Sheet, the Company has not 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.
Appears in 4 contracts
Sources: Merger Agreement (Gca I Acquisition Corp), Merger Agreement (Gca Ii Acquisition Corp), Merger Agreement (Gca I Acquisition Corp)
Taxes. Except as set forth in on Section 3.16 4.11 of the Company Disclosure Schedule:
(a) Each of Schedule and except as would not reasonably be expected to be material to the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted taken as a result of such Audits which have not been finally resolved and fully paid.
whole: (fa) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employeesfiled or caused to be filed all federal, independent contractors, creditors, stockholders, customers state and third parties, non-U.S. Tax returns that are required to be filed and timely has paid all Taxes shown to be due and payable on said returns and all other Taxes (other than any amount the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions validity of applicable law.
(j) No power of attorney which is currently being contested in force good faith by appropriate proceedings in each case, with respect to any matter relating to Taxes that could affect which reserves in conformity with GAAP have been provided on the books of the Company or any of its Subsidiaries.
, as the case may be), (kb) Neither no Tax Lien has been filed other than Permitted Liens, (c) to the Knowledge of the Company, there is no pending claim with respect to unpaid Taxes (except for any such Tax liabilities to Taxing authorities outside of the United States which are not, in the aggregate, material to the Company and its Subsidiaries taken as a whole), (d) neither the Company nor any Subsidiary shall become obligated thereof is party to any tax sharing agreement, other than an agreement the principal purpose of which is not the allocation of Taxes, and (e) the unpaid Taxes of the Company and any Subsidiary do not exceed the reserves for Tax liability set forth on the financial statements of the Company and its Subsidiaries as adjusted for the passage of time through the Closing Date in connection accordance with the closing past custom and practice of the Merger Company and its Subsidiaries. The representations set forth in this Section 4.11 and Section 4.13 (below) are the only representations and warranties in this Agreement with respect to Tax matters, and any claim for breach of a representation or warranty with respect to Tax matters shall be based on the payment representations and warranties made in this Section 4.11 and Section 4.13 (below) and shall not be based on the representations and warranties set forth in any other provision of any amount described in Section 162(m)(1) of the Codethis Agreement.
Appears in 4 contracts
Sources: Backstop Commitment Agreement (Parker Drilling Co /De/), Backstop Commitment Agreement (Parker Drilling Co /De/), Restructuring Support Agreement (Parker Drilling Co /De/)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company has prepared and its Subsidiaries has (i) duly and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each such Tax Return is correct complete and complete accurate in all material respects and (ii) duly respects. The Company has timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been had paid or such provision has been made on its behalf for its sole benefit and recoursebehalf) for the payment of, all Taxes due and owing by it (whether or not shown on any Tax Return). There are no Encumbrances for all periods ending on or prior to Taxes (other than Encumbrances for taxes not yet due and payable) upon any of the date assets of this Agreement, except for those Taxes being contested in good faiththe Company.
(b) There are no Liens for The unpaid Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens (i) did not as of the date of the Most Recent Balance Sheet exceed the reserve for Taxes not yet due (excluding 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 any notes thereto) and (ii) will not, as of the close of the Closing Date, exceed that reserve as adjusted for which adequate reserves have been established the passage of time through the Closing Date in accordance with GAAP with full provision made for the payment thereofpast custom and practice of the Company in filing its Tax Returns.
(c) Neither No deficiencies for any Taxes have been proposed, asserted or assessed against the Company by any Taxing Authority that are still pending and, to the Knowledge of the Selling Parties, no such deficiencies have been threatened. The Company has not waived any statute of limitations in respect of any Tax, nor any has the Company requested such a waiver, other than waivers as a result of its Subsidiaries has made any change in accounting methods, received a ruling from any extensions of time to file Tax Authority or signed an agreement Returns that are automatically granted. There is no Action pending with regard respect to Taxes reasonably likely to have a Company Material Adverse Effectpayable by the Company, and no such Action has been threatened in writing.
(d) No Audit (as hereinafter defined) claim has ever been made by a Tax Taxing Authority is presently pending with regard to any Taxes or in a jurisdiction where the Company does not file Tax Returns of that the Company is or any of its Subsidiaries may be subject to taxation by, or required to file Tax Returns in, such jurisdiction, and, to the knowledge Knowledge of the CompanySelling Parties, there is no basis for any such Audit claim to be made. The Company has never had a permanent establishment in, or been engaged in a trade or business in, any country other than the country in which it is threatenedorganized.
(e) An Audit of each United States federal income Tax Return of All Taxes that the Company or any of its Subsidiaries has is required by Law to withhold have been completed by duly withheld and timely paid to the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996appropriate Taxing Authority, and no adjustments were asserted as a result the Company has complied with all applicable Laws relating to the withholding and reporting of such Audits which have not been finally resolved and fully paidany payments made to any employee, independent contractor, creditor, shareholder, vendor or other Person.
(f) There are no agreementsThe Company has never been a member of an affiliated, consents consolidated, unitary or waivers to extend similar group for Tax purposes. The Company is not liable for the statutory period of limitations applicable to the assessment or payment Taxes of any Taxes other Person as a result of successor liability, transferee liability, joint or deficiencies against the Company several liability (including pursuant to Treasury Regulations Section 1.1502-6 or any similar provision of its Subsidiariesstate, and no power of attorney applicable to either the Company local, or foreign law), any of its Subsidiaries with respect to indemnification provision, any Taxes is in forceContract or otherwise.
(g) Neither The Company has never participated in any “reportable transaction” within the Company nor meaning of Section 6707A(c)(1) of the Code or any “tax shelter” within the meaning of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to Section 6662 of the allocation, indemnification or sharing of TaxesCode.
(h) The CompanyCompany will not be required to include any item of income in, or to exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing as a result of any (i) change in method of accounting for a taxable period (or portion thereof) ending prior to the common parent of an affiliated group of corporations Closing, (ii) “closing agreement” as defined described in Section 1504 7121 of the CodeCode (or any corresponding or similar provision of state, local or foreign Law) consisting solely of executed prior to the Company and the Subsidiaries that are "includable corporations" Closing, (within the meaning of Section 1504(biii) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentinstallment sale or open transaction disposition entered into prior to Closing or (iv) prepaid amount received prior to Closing.
(i) With respect to completed pay periods, the The Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid (i) to the appropriate Tax Authorityextent deferred, proper amounts 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 claimed, or intended to be claimed, properly complied in all material respects with all Laws and duly accounted for any available Tax withholding credits under Sections 7001 through 7004 of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, (iii) not deferred any payroll tax obligations (including those imposed by Sections 3101(a) and 3201 of the Code) (for example, by a failure to timely withhold, deposit or remit such amounts in accordance with the applicable provisions of applicable lawthe Code and the Treasury Regulations promulgated thereunder) pursuant to or in connection with any U.S. presidential memorandum or executive order and (iv) not sought a PPP Loan.
(j) No power The Company has duly kept and properly maintained all material records for all taxable years still open for audit that such Person is required to keep for Tax purposes under any applicable Laws, and such records have been made available for inspection at the premises of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its SubsidiariesCompany.
(k) Neither The Company is, and has been since the Company nor any Subsidiary shall become obligated in connection with the closing date of the Merger its formation, treated as a partnership for the payment of any amount described in Section 162(m)(1) of the CodeU.S. federal and applicable state and local income tax purposes.
Appears in 4 contracts
Sources: Membership Interest Purchase Agreement (Odyssey Therapeutics, Inc.), Membership Interest Purchase Agreement (Odyssey Therapeutics, Inc.), Membership Interest Purchase Agreement (Odyssey Therapeutics, Inc.)
Taxes. Except as set forth The Company and each subsidiary has filed all Tax Returns which it is required to file under applicable laws; all such Tax Returns are true and accurate and have been prepared in Section 3.16 compliance with all applicable laws; the Company has paid all Taxes due and owing by it or any subsidiary (whether or not such Taxes are required to be shown on a Tax Return) and has withheld and paid over to the appropriate taxing authorities all Taxes which it is required to withhold from amounts paid or owing to any employee, stockholder, creditor or other third parties; and since December 31, 1999, the charges, accruals and reserves for Taxes with respect to the Company (including any provisions for deferred income taxes) reflected on the books of the Company Disclosure Schedule:
(a) Each are adequate to cover any Tax liabilities of the Company and if its Subsidiaries has (i) duly filed (or there have been filed current tax year were treated as ending on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision hereof. No claim has been made on its behalf for its sole benefit and recourse) for by a taxing authority in a jurisdiction where the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of Company does not file tax returns that the Company or any Subsidiary thereofsubsidiary is or may be subject to taxation by that jurisdiction. There are no foreign, federal, state or local tax audits or administrative or judicial proceedings pending or being conducted with respect to the Company or any subsidiary; no information related to Tax matters has been requested by any foreign, federal, state or local taxing authority; and, except for Liens for Taxes not yet due and for which adequate reserves have as disclosed above, no written notice indicating an intent to open an audit or other review has been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither received by the Company nor or any subsidiary from any foreign, federal, state or local taxing authority. There are no material unresolved questions or claims concerning the Company's Tax liability. The Company (A) has not executed or entered into a closing agreement pursuant to ss. 7121 of its Subsidiaries the Internal Revenue Code or any predecessor provision thereof or any similar provision of state, local or foreign law; and (B) has made not agreed to or is required to make any adjustments pursuant to ss. 481 (a) of the Internal Revenue Code or any similar provision of state, local or foreign law by reason of a change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) method initiated by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andsubsidiaries or has any knowledge that the IRS has proposed any such adjustment or change in accounting method, or has any application pending with any taxing authority requesting permission for any changes in accounting methods that relate to the knowledge business or operations of the Company, no such Audit is threatened.
(e) An Audit of each . The Company has not been a United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (real property holding corporation within the meaning of Section 1504(bss. 897(c)(2) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither Internal Revenue Code during the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group applicable period specified in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1ss. 897(c)(1)(A)(ii) of the Internal Revenue Code.. The Company has not made an election under ss. 341(f) of the Internal Revenue Code. The Company is not liable for the Taxes of another person that is not a subsidiary of the Company under (A) Treas. Reg. ss. 1.1502-6 (or comparable provisions of state, local or foreign law), (B) as a transferee or successor, (C) by contract or indemnity or (D) otherwise. The Company is not a party to any tax sharing agreement. The Company has not made any payments, is not obligated to make payments nor is it a party to an agreement that could obligate it to make any payments that would not be deductible under ss. 280G of the Internal Revenue Code. For purposes of this Section 2.1(o):
Appears in 4 contracts
Sources: Common Stock Purchase Agreement (Lam Pharmaceutical Corp), Common Stock Purchase Agreement (Cel Sci Corp), Common Stock Purchase Agreement (24/7 Media Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All material Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date Closing Date by or with respect to the Assets or the operations or the income of this AgreementSeller and its Subsidiaries have, within the time and each manner prescribed by law, been duly filed with the appropriate tax authorities. All such Tax Return is correct Returns are true, correct, and complete in all material respects and (ii) duly all Taxes shown to be due on such Tax Returns have been paid. Seller and its Subsidiaries have timely paid in full or, or caused to be paid all Taxes required to be paid or have made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes therefor for all taxable years or periods ending on or prior to before the date Closing Date and for the portion of this Agreement, except for those Taxes being contested the taxable year or period through and including the Closing Date in good faiththe case of any Straddle Period.
(b) There are no Liens Encumbrances for Taxes upon any property or assets of the Company Assets or upon the stock of any Seller's Purchased Subsidiary thereof, or upon the assets or properties of any Seller's Purchased Subsidiary except for Liens statutory liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofdue.
(c) Neither the Company nor Each Seller's Purchased Subsidiary (i) have prepared in good faith and duly and timely filed all material Tax Returns required to be filed by any of its Subsidiaries has made them and all such filed Tax Returns are complete and accurate in all respects, (ii) have paid all Taxes that are required to be paid on or prior to the Closing Date or that any change Seller's Purchased Subsidiary is obligated to withhold on or prior to the Closing Date from amounts owing to any employee, creditor or third party, except with respect to matters contested in accounting methodsgood faith or adequately reserved on the books of the Seller's Purchased Subsidiary, received a ruling from and (iii) have not waived any Tax Authority or signed an agreement statute of limitations with regard respect to Taxes reasonably likely or agreed to have any extension of time with respect to a Company Material Adverse Effect.Tax assessment or deficiency;
(d) No Audit (as hereinafter defined) by a Tax Authority is presently There are not pending with regard to or threatened in writing any audits, examinations, investigations or other proceedings in respect of Taxes or Tax matters of any Seller's Purchased Subsidiary. The Tax Returns of each Seller's Purchased Subsidiary for the Company or any of its Subsidiaries andtaxable periods ended before January 1, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has 1995 have been completed examined by the applicable Tax Authorities appropriate Governmental Entity (or the applicable statutes statute of limitation limitations for the assessment of Taxes for such periods have has expired) for ). A list of all periods through and including 1996audits, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents examinations or waivers to extend the statutory period of limitations applicable to the assessment investigations commenced or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries completed with respect to any Taxes Seller's Purchased Subsidiary with respect to taxable periods ending after December 31, 1994 is set forth in force.Section 4.24(d) of the Disclosure Schedule;
(ge) Neither the Company nor any of its Subsidiaries No Seller's Purchased Subsidiary is a party to, or is bound by, or has any obligation under, any Tax sharing agreement, arrangement Tax indemnification agreement or policy relating similar contract or arrangement, and no Seller's Purchased Subsidiary has any potential liability or obligation to the allocationany person as a result of, indemnification or sharing of Taxes.pursuant to, any such agreement, contract or arrangement;
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(jf) No power of attorney is currently in force has been granted by or with respect any Business Subsidiary with respect to any matter relating to Taxes Taxes;
(g) No Seller's Purchased Subsidiary is a party to any agreement, plan, contract or arrangement (whether oral or in writing) that could affect would result, separately or in the Company aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code or any similar provision of its Subsidiariesstate, local or foreign law;
(h) All material Tax deficiencies which have been claimed, proposed or asserted against any Seller's Purchased Subsidiary have been fully paid or finally settled, and no issue has been raised in any examination by any Tax authority, which, by application of similar principles, could reasonably be expected to result in the proposal or assertion of a material Tax deficiency for another year not so exam ined;
(i) No Seller's Purchased Subsidiary has been a member of any affiliated group within the meaning of Section 1504 of the Code (or similar state, local, or foreign filing group).
(j) Each of Seller's Purchased Subsidiaries have receipts or other appropriate documentation for all material foreign taxes, charges, fees, levies or other assessments paid or accrued from January 1, 1994;
(k) Neither With respect to each Seller's Purchased Subsidiary that is classified as a partnership for United States federal income tax purposes or any Asset that is an interest in an entity that is classified as a partnership for United States federal income tax purposes, (i) each such partnership has complied with all applica ble requirements of the Company nor any Subsidiary shall become obligated in connection Code, including but not limited to the registration and investor list requirements applicable to tax shelters; (ii) all partnership allocations comply with the closing requirements of Section 704 of the Merger Code and (iii) the capital account with respect to any interest in such partnership being acquired hereunder or owned by any Seller Purchased Subsidiary does not have a deficit balance that is required to be restored;
(l) Other than any Tax Returns which have not yet been required to be filed, Seller has made available to Purchaser true and correct copies of the United States federal income Tax Return and any material state, local or foreign Tax Return filed by each Seller's Purchased Subsidiary for each of the payment of any amount described in taxable years ended December 31, 1997, 1998, and 1999;
(m) Section 162(m)(14.24(m) of the CodeDisclosure Schedule sets forth (i) all material elections with respect to Taxes of each Seller's Purchased Subsidiary and (ii) all foreign, state and local jurisdictions in which any Seller's Purchased Subsid iary is or has been subject to Tax and each material type of Tax payable in such jurisdiction during the taxable years ended December 31, 1999 and 2000;
(n) Seller has previously delivered or made available to Purchaser complete and accurate copies of each of (i) all material audit reports, letter rulings, technical advice memoranda, and similar documents issued by a governmen tal authority from December 31, 1997 relating to the United States federal, state, local or foreign Taxes due from or with respect to any Seller's Purchased Subsidiary and (ii) any closing agreements entered into by any Seller's Purchased Subsidiary with any Tax authority in each case existing on the date hereof. Seller will deliver to Purchaser all materials with respect to the foregoing for all matters arising after the date hereof.
(o) No Seller's Purchased Subsidiary is required to include in income any adjustment pursuant to Section 481(a) of the Code (or any similar provision of state, local or foreign law) by reason of any voluntary change in account ing method (nor has any Governmental Entity proposed in writing any such adjust ment or change of accounting method).
Appears in 4 contracts
Sources: Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/)
Taxes. (a) Except as would not have a Holdings Material Adverse Effect or as set forth in on Section 3.16 4.9 of the Company Holdings Disclosure Schedule:
(ai) Each of the Company Holdings and its Subsidiaries Worldwide (A) has (i) duly filed (or there have has been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Governmental Entities all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each all such Tax Return is Returns are true, correct and complete in and (B) has paid all material respects and Taxes due by it;
(ii) duly paid There are no outstanding waivers in full orwriting or comparable consents regarding the application of any statute of limitations in respect of Taxes of Holdings or Worldwide;
(iii) There is no action, made adequate accruals suit, investigation, audit, claim or assessment pending or proposed in writing or threatened in writing with respect to Taxes of Holdings or Worldwide and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date best of this AgreementHoldings' knowledge, except for those Taxes being contested in good faith.no basis exists therefor;
(biv) There are no Liens for Taxes upon any property or the assets of the Company Holdings or any Subsidiary thereof, Worldwide except for Liens for relating to current Taxes not yet due and due;
(v) All Taxes which Holdings or Worldwide are required by law to withhold or to collect for which adequate reserves payment have been established duly withheld and collected, and have been paid or accrued, reserved against and entered on the books of Holdings in accordance with GAAP with full provision made for the payment thereof.GAAP; and
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(jvi) No power of attorney which is currently in force has been granted by or with respect to Holdings or Worldwide with respect to any matter relating to Taxes.
(b) Except as would not have a Holdings Material Adverse Effect, Holdings and its subsidiaries have previously delivered or made available to Laser (and its representatives) complete and accurate copies of:
(i) all audit reports, letter rulings, technical advice memoranda relating to United States federal, state, local and foreign Taxes due from or with respect to Holdings or its subsidiaries;
(ii) United States federal Tax Returns (to the extent that could affect the Company such Tax Returns relate to Holdings and its subsidiaries), and those state, local or foreign Tax Returns filed by (or on behalf of) Holdings or any of its Subsidiaries.subsidiaries (to the extent that such Tax Returns relate to Holdings and its subsidiaries) (including, in each case, workpapers related to such Tax Returns);
(kiii) Neither any closing agreements entered into by Holdings or any of its subsidiaries with any taxing authority, in each case existing on the Company nor date hereof; and
(iv) any Subsidiary shall become obligated in connection with Tax Sharing Arrangements and Tax indemnity arrangements to which Holdings or any of its subsidiaries was a party at any time prior to the closing of Closing Date. Holdings and its subsidiaries will deliver or make available to Laser (and its representatives) all similar materials for all matters arising after the Merger for the payment of any amount described in Section 162(m)(1) of the Codedate hereof.
Appears in 4 contracts
Sources: Merger Agreement (CLN Holdings Inc), Agreement and Plan of Merger (Sunbeam Corp/Fl/), Merger Agreement (Coleman Worldwide Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(ai) Each of the Company Echo Holdco and its Subsidiaries has (iA) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all material Tax Returns (as hereinafter defined) required to be filed by it and (B) timely paid all Taxes shown as due on or prior to the date of this Agreement, and each such Tax Return is Returns. All such Tax Returns were correct and complete in all material respects respects. Each of Echo Holdco and (ii) duly its Subsidiaries has withheld and paid all material Taxes required to have been withheld and paid by it in full or, made adequate accruals and reserves in its books and records in accordance connection with GAAP with full provision (or there has been any amounts paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior owing to the date of this Agreement, except for those Taxes being contested in good faithany Person.
(bii) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, (except for Liens for Taxes not yet due and or for which adequate reserves have been established on the Balance Sheet of the Echo Business in accordance with GAAP with full provision made for GAAP) upon any of the payment thereofassets or properties included in the Echo Business.
(ciii) Neither the Company nor any of its Subsidiaries has made any change in accounting methodsThere are no U.S. federal, received a ruling from any state, local or non-U.S. Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently audits currently pending with regard to any material Taxes or Tax Returns of the Company Echo Holdco or any of its Subsidiaries andin which a Taxing Authority has raised an issue that relates to the Echo Business, and to the knowledge of the CompanyEcho Parties, no such Audit Tax audit is threatened.
(e) An Audit of each United States federal income Tax Return . To the knowledge of the Company Echo Parties, no claim has ever been made by a Taxing Authority in a jurisdiction where Echo Holdco or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction as a consequence of operating the Echo Business.
(iv) None of Echo Holdco and its Subsidiaries (A) has, during the last eight years, been a member of an affiliated, consolidated, combined or unitary group (other than any such group the common parent of which was Echo Holdco or a Subsidiary of Echo Holdco) or (B) during the two-year period ending on the date hereof, was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(v) None of Echo Holdco and its Subsidiaries will be required to include in or for, or allocate with respect to, a Post-Closing Tax Period a material amount of taxable income attributable to income economically realized in a Pre-Closing Tax Period (nor has any material deduction economically attributable to a Post-Closing Tax Period been completed by the applicable claimed in a Pre-Closing Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and Period), including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidany (A) change in accounting method made prior to the Closing Date, (B) closing or similar agreement with any Tax authority entered into prior to the Closing, (C) installment sale or open transaction disposition made on or prior to the Closing Date, (D) election under Section 108(i) of the Code or (E) prepaid amount received prior to the Closing Date.
(fvi) There are no agreements, consents or waivers to extend the statutory period None of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, Echo Holdco and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, to any understanding or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined described in Section 1504 6662(d)(C)(ii) of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (, or has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent1.6011-4.
(ivii) With respect to completed pay periodsNotwithstanding any other provision of this Agreement, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts nothing in all material respects with all Tax withholding provisions of applicable law.
this Agreement (jincluding this Section 4.01(t) No power of attorney is currently in force or otherwise) shall be construed as providing a representation or warranty with respect to the existence, amount, expiration date or limitations on (or availability of) any matter relating to Taxes that could affect the Company Tax asset or method of Tax accounting of any of Echo Holdco or its SubsidiariesSubsidiaries for a Post-Closing Tax Period.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 4 contracts
Sources: Agreement of Contribution and Sale (PF2 SpinCo, Inc.), Agreement of Contribution and Sale (Change Healthcare Inc.), Agreement of Contribution and Sale (Change Healthcare Inc.)
Taxes. Except Other than as set forth in Section 3.16 2.10 of the Company Disclosure Schedule:,
(a) Each of the The Company and its Subsidiaries has (i) duly has timely filed (or there have been filed on its behalf) with the each appropriate Tax Authorities (as hereinafter defined) Governmental Body all Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to the date of this Agreementit, and each (ii) has fully and timely paid all Taxes due and owing by it (whether or not such Taxes have been reflected on any Tax Return). All such Tax Return is Returns are true, correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there no such Tax Return has been paid or such provision amended. All Taxes that the Company has been made on its behalf required by Law to withhold or to collect for its sole benefit payment have been duly withheld and recourse) for the payment ofcollected, all Taxes for all periods ending on or prior and have been paid over to the date of this Agreement, except appropriate Governmental Body or are being held by the Company for those Taxes being contested such payment in good faithcompliance with all applicable legal requirements.
(bi) There are no Liens for pending Claims by any Governmental Body that has provided written notice thereof to the Company with respect to Taxes upon relating to the Company; (ii) no extension or waiver of the limitation period applicable to any property or assets Tax Return of the Company (including, without limitation, any such period to file any such Tax Return or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the assessment, collection or payment thereofof any Taxes) has been requested, granted or is in effect; (iii) no Tax Return of the Company is currently under audit by any Governmental Body; and (iv) the Company has not received any written notice of adjustment from any Governmental Body with respect to Taxes of the Company.
(c) Neither The Company has no liability for the Company nor Taxes of any Person under any provision of its Subsidiaries state, local or foreign law, as a transferee or successor by contract, or otherwise, or has made any change in accounting methodsever been a party to, received a ruling from or bound by, any Tax Authority indemnity agreement, Tax sharing agreement, Tax allocation agreement or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectsimilar contract.
(d) No Audit (as hereinafter defined) by a There are no Tax Authority is presently pending with regard to liens on any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge assets of the Company, no such Audit is threatenedother than Permitted Liens.
(e) An Audit of each United States federal income The Company is not doing business in or engaged in a trade or business in any jurisdiction in which it has not filed all required Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996Returns, and no adjustments were asserted as a result of such Audits notice or inquiry has been received by the Company from any Governmental Body with which Tax Returns have not been finally resolved and fully paidfiled by the Company to the effect that the filing of Tax Returns may be required. The Company is not required to file any Tax Returns in any jurisdiction outside Canada.
(f) There are no agreements, consents The Company has not been at any time a member of any partnership or waivers to extend joint venture or the statutory holder of a beneficial interest in any trust for any period for which the statute of limitations applicable to the assessment or payment of for any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceTax has not expired.
(g) Neither the The Company nor any of its Subsidiaries is a party has not agreed to, and is not required to, make any adjustment to income or is bound byexpenses resulting in an adjustment in future years pursuant to any provision of any state, local or foreign law, including as a result of any agreement, arrangement or policy relating to the allocation, indemnification or sharing change in method of Taxesaccounting.
(h) The Company is not subject to, and has not requested, any ruling or notice of determination of, or agreement with, any Taxing Authority.
(i) The Company has not engaged in any “reportable transactions” within the meaning of Treasury Regulations Section 1.6011-4(b) or Section 237.3 of the Tax Act.
(j) The Company has not acquired assets from another corporation in a transaction in which the Company’s Tax basis for the acquired assets was determined, in whole or in part, by reference to the Tax basis of the acquired assets (or any other property) in the hands of the transferor.
(k) The Company will not 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) that begins after the Closing Date as a result of (i) any change in method of accounting adopted before the Closing, (ii) any installment sale or open transaction disposition, intercompany transaction or intercompany account made or existing on or before the Closing, (iii) prepaid amount received on or prior to the Closing, (iv) “closing agreement” made before the Closing with any Governmental Body pursuant to any provision of state, local or foreign law, (v) a reserve, deduction, advance payment, election or tax credit established, made or received (as the common parent of an affiliated group of corporations case may be) before the Closing, except in all cases, any such item to the extent taken into account in the final Closing Statement.
(as defined in Section 1504 of the Codel) consisting solely of the The Company is not and the Subsidiaries that are "includable corporations" has never been a (i) “passive foreign investment company” within the meaning of Section 1504(b) 1297 of the Code), has filed since 1994 Code and the Treasury Regulations thereunder or (ii) a consolidated return for United States federal income Tax purposes on behalf “controlled foreign corporation” within the meaning of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing Section 957 of the Merger for Code and the payment of any amount described in Treasury Regulations thereunder. The Company has not made an election pursuant to Section 162(m)(1897(i) of the Code.
(m) No entity classification election has been made pursuant to Treasury Regulation Section 301.7701-3 with respect to the Company.
(n) The Company has made available to Buyer complete and correct copies of all Tax Returns of the Company that have been filed for the years 2012, 2013 and 2014 as of the date hereof (except Tax Returns for periods in respect of which the applicable statutory period of limitations has expired) and copies of all its correspondence with Governmental Bodies related to Taxes.
(o) No amount in respect of any outlay or expense that is deductible in computing the income of the Company for the purposes of the Tax Act has been owing by the Company for longer than two (2) years to a Person with whom it was not dealing at arm’s length (for the purposes of the Tax Act) at the time the outlay or expense was made or incurred.
(p) The Company has not claimed a deduction with respect to an outlay or expense that may be considered unreasonable under the circumstances.
(q) Except pursuant to this Agreement or as specifically disclosed in writing to the Buyer, for purposes of the Tax Act or any other Law, there has never been a change or acquisition of control of the Company.
(r) The Company has not, directly or indirectly, transferred property to or supplied services to, or acquired property or services from, any 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 such property or services.
(s) For all transactions between the Company and any non-resident Person with whom the Company was not dealing at arm’s length during a taxation year commencing after 1998 and ending on or before the Closing, the Company has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act.
(t) There are no circumstances which exist and would result in, or which have existed and resulted in, the application of any of sections 78, 80, 80.01, 80.02, 80.03 or 80.04 of the Tax Act, or any equivalent provision of the taxation legislation of any province or any other jurisdiction, to the Company at any time up to and including the Closing Date in respect of any transaction entered into.
(u) All Taxes incurred or losses sustained by the Company prior to the Closing Date have arisen in the Ordinary Course of Business, except for Taxes or losses, if any, arising from the transactions contemplated by this Agreement or the Pre-Closing Reorganization.
(v) The Company has not made an “excessive eligible dividend designation” as defined in subsection 89(1) of the Tax Act and, since January 1, 2006, the Company has not paid any dividend which it did not designate as an “eligible dividend” pursuant to subsection 89(14) of the Tax Act in circumstances where such designation would not have resulted in an “excessive eligible dividend designation” (as defined in subsection 89(1) of the Tax Act) having been made by the Company, as the case may be, and will not make or be required to make an “excessive eligible dividend designation” under the Pre-Closing Reorganization except in circumstances where the Company is able to make a corresponding election to avoid Part III.1 tax under the Tax Act as referenced in Section 4.15.
(w) The Company is a registrant for the purposes of the GST Legislation having the registration number 856739107 RT0001. The Company is not and has never been a financial institution within the meaning of the GST Legislation or a financial institution or specified financial institution within the meaning of the Tax Act.
(x) The Company has maintained and, for the period required by applicable Law, continues to maintain at its place of business in Canada all books and records required to be maintained under the Tax Act, the GST Legislation, or any comparable Law of any province or territory of Canada (including any municipality or state thereof), including Laws relating to sales or use Taxes.
(y) The Company is not a non-resident of Canada for the purposes of the Tax Act. The Shareholder is not a non-resident of Canada, nor a partnership other than a Canadian partnership, for the purposes of the Tax Act.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each All Company Consolidated Income Tax Returns and any other material Tax Returns of the Company and its Subsidiaries has (i) duly filed (or there Broadcasting required to have been filed on its behalf) or before the date hereof have been filed with the appropriate Tax Authorities (as hereinafter defined) governmental agencies in all jurisdictions in which such Tax Returns (as hereinafter defined) were required to be filed by it on or prior to the date have been filed. All of this Agreement, and each such Tax Return is Returns were true, correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending shown to be due on such Tax Returns have been paid. All material Taxes payable by or with respect to the Company and its Subsidiaries but not reflected on any Tax Return required to have been filed prior to the date of this Agreement, except for those Taxes being contested the most recent balance sheet included in good faiththe Company 10-Q have been fully paid or adequate provision therefor has been made and reflected on such balance sheet.
(b) There are Except as set forth on Schedule 3.11(b) hereto, there is no Liens for Taxes upon any property claim or assets of investigation involving an amount greater than $1,000,000 pending or threatened against the Company or any Subsidiary thereofof its Subsidiaries for past Taxes, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(cclaims or investigations set forth on Schedule 3.11(b) Neither has been made as reflected on the Company Financial Statements. Except as set forth on Schedule 3.11(b), neither the Company nor any of its Subsidiaries has made waived or extended any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard applicable statute of limitations relating to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of federal, state or local Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forcerespectively.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(hc) The CompanyCompany is not, as and on the common parent of Closing Date will not be, an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (investment company within the meaning of Section 1504(b368(a)(2)(F)(iii) and (iv) of the Code).
(d) Except for the Technical Advice Request currently pending with the IRS relating to the examination of the 1993 and 1994 Company Consolidated Income Tax Returns and the Closing Agreement executed by the Company on May 11, 1994, a copy of which has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and been furnished to Acquiror, neither the Company nor any of such Subsidiaries Broadcasting Subsidiary has been pending a member of an affiliated group filing a consolidated United States federal Tax Return Ruling Request (as defined below) other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing Contribution, Distribution and Merger or entered into a Closing Agreement (as defined below) with the IRS. "Tax Ruling Request," as used in this Agreement, shall mean a request for a written ruling of a Taxing authority relating to Taxes. "Closing Agreement," as used in this Agreement, shall mean a material written and legally binding agreement with the Merger for the payment of any amount described in Section 162(m)(1) of the CodeIRS relating to Taxes.
Appears in 4 contracts
Sources: Merger Agreement (Hearst Argyle Television Inc), Merger Agreement (Pulitzer Publishing Co), Merger Agreement (Pulitzer Publishing Co 1995 Voting Trust)
Taxes. Except as set forth would not reasonably be expected to have, individually or in Section 3.16 of the Company Disclosure Scheduleaggregate, a Parent Material Adverse Effect:
(ai) Each of the Company income or franchise Tax Return and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate each other material Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) Return required to be filed with any Taxing Authority by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company Parent or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for filed when due and is true and complete in all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.material respects;
(fii) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company Parent and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in Taxing Authority all material respects with Taxes shown as due and payable on all Tax withholding provisions of applicable law.Returns that have been so filed;
(jiii) No power of attorney is currently in force the accruals and reserves with respect to any matter relating Taxes as set forth on the Parent Balance Sheet are adequate (as determined in accordance with GAAP);
(iv) adequate accruals and reserves (as determined in accordance with GAAP) have been established for Taxes attributable to Taxes that could affect taxable periods (or portions thereof) from the Company Parent Balance Sheet Date;
(v) there is no action, suit, investigation, proceeding or audit pending or, to Parent’s knowledge, threatened against or with respect to Parent or any of its SubsidiariesSubsidiaries in respect of any material Tax; and
(vi) there are no Liens for material Taxes on any of the assets of Parent or any of its Subsidiaries other than Liens for Taxes not yet due or being contested in good faith (and, in either case, which have been disclosed on Section 5.14(a)(vi) of the Parent Disclosure Schedule) or for which adequate accruals or reserves have been established on the Parent Balance Sheet.
(kb) Neither The income and franchise Tax Returns of Parent and its Subsidiaries through the Company nor Tax year ended December 31, 1993 have been examined and the examinations have been closed or are Tax Returns with respect to which the applicable period for assessment, after giving effect to extensions or waivers, has expired. The federal Tax Returns have been examined and the applicable federal statute of limitations (including extensions) have expired for Tax years through December 31, 2000 as well as for Tax years December 31, 2007 and December 31, 2008.
(c) No jurisdiction in which Parent or any Subsidiary shall become obligated of its Subsidiaries does not file Tax Returns has asserted that Parent or any of its Subsidiaries is or may be liable for Tax in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Codethat jurisdiction.
Appears in 4 contracts
Sources: Merger Agreement, Merger Agreement, Merger Agreement (Comcast Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Sellers and its Subsidiaries the Purchased Entities has (i) duly and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior (taking into account all applicable extensions) with the appropriate Taxing Authority with respect to the date of this AgreementPurchased Entities, the Purchased Assets, and each such Tax Return is correct and complete in all material respects the Business, and (ii) duly paid all Taxes shown as due on such Tax Returns when payable. To the Knowledge of the Sellers, all such Tax Returns are true and correct in full orall material respects, made adequate accruals and reserves were prepared in its books substantial compliance with all applicable Laws and records in accordance with GAAP with full provision (or there has been paid or such provision regulations. To the Knowledge of the Sellers, since January 1, 2007, no claim has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on by a Taxing Authority in a jurisdiction where a Seller or prior a Purchased Entity does not file Tax Returns that any such entity is or may be subject to taxation by that jurisdiction with respect to the date Business, the Purchased Entities, or the Purchased Assets. Neither the Seller (specifically with respect to the Business or the Purchased Assets) nor the Purchased Entities is currently the beneficiary of this Agreement, except for those Taxes being contested in good faithany extension of time within which to file any Tax Return.
(b) There To the Knowledge of the Sellers, there are no Liens material Encumbrances for Taxes upon the Purchased Assets or any personal property or assets of the Company or any Subsidiary thereofPurchased Entities, except for Liens for Taxes not yet due and Permitted Encumbrances or Encumbrances for which adequate reserves have been established provided in accordance with GAAP with full provision made for the payment thereofFinancial Statements.
(c) Neither Except as set forth in Section 4.7(c) of the Company nor Disclosure Schedule, to the Knowledge of the Sellers, there is no audit, examination, deficiency, refund litigation or proposed adjustment with respect to any material amount of its Subsidiaries has made Taxes pending or in progress or threatened with respect to any change in accounting methods, received a ruling from any Tax Authority Taxes of the Sellers (specifically with respect to the Business or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectthe Purchased Assets) or of the Purchased Entities.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns To the Knowledge of the Company or any of its Subsidiaries andSellers, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There there are no outstanding written requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any income Taxes or material income Tax deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries Sellers (specifically with respect to the Business or the Purchased Assets) or the Purchased Entities.
(e) To the Knowledge of the Sellers, the Sellers (specifically with respect to the Business or the Purchased Assets) and the Purchased Entities are in material compliance with all applicable information reporting and Tax withholding requirements under U.S. federal, state and local, and non-US Tax Laws.
(f) To the Knowledge of the Sellers, no Seller (specifically with respect to the Business or the Purchased Assets) or Purchased Entity is a party to, is bound by or has any Taxes is in forceobligation under any Tax sharing, Tax allocation or Tax indemnity agreement or similar contract or arrangement.
(g) Neither To the Company nor any Knowledge of its Subsidiaries is a party tothe Sellers, or is bound by, any agreement, arrangement or policy relating no Seller (specifically with respect to the allocationBusiness or the Purchased Assets) or Purchased Entity has engaged in a transaction that the Internal Revenue Service has identified by regulation or other form of published guidance as a listed transaction, indemnification or sharing of Taxesas set forth in Treas. Reg. § 1.6011-4(b)(2).
(h) The Company, Except as the common parent of an affiliated group of corporations (as defined set forth in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b4.7(h) of the Code)Disclosure Schedule, has filed to the Knowledge of the Sellers, since 1994 a consolidated return January 1, 2007, there are no Liabilities for United States federal income Tax purposes on behalf Taxes of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return Person (other than for the affiliated group in which they are currently members and Purchased Entities) under Treasury Regulation Section 1.1502-6 (or any similar provision of which state, local, or foreign law) or as a transferee or successor, by contract, or otherwise with respect to the Company is Purchased Entities, the common parentPurchased Assets, or the Business.
(i) With respect No Purchased Entity will be required to completed pay periodsinclude 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 and each Closing Date as a result of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid (i) a change in method of accounting for a taxable period ending on or prior to the appropriate Closing Date, (ii) “closing agreements” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Tax Authoritylaw) executed on or prior to the Closing Date, proper amounts (iii) an installment sale or open transaction disposition made on or prior to the Closing Date, (iv) a prepaid amount received on or prior to the Closing Date not in all material respects with all the ordinary course of business, or (v) intercompany transaction or excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local, or non-U.S. income Tax withholding provisions of applicable law) or (vi) election pursuant to Code Section 108(i) made effective on or prior to the Closing Date.
(j) No power To the Knowledge of attorney is currently the Sellers, no Purchased Entity has distributed stock of another Person, or has had its stock distributed by another Person, in force with respect a transaction that was purported or intended to any matter relating to Taxes that could affect be governed in whole or in part by Section 355 or Section 361 of the Company or any of its SubsidiariesCode.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(14.7(k) of the CodeDisclosure Schedule correctly sets forth each entity classification election that has been made pursuant to Section 301.7701-3 of the U.S. Treasury Regulations with respect to the Purchased Entities, and with respect to each such election, the effective date thereof and the classification elections pursuant thereto.
(l) Each Purchased Entity has complied with all statutory provisions, rules, regulations, orders and directions in respect of any value added or similar tax on consumption, has promptly submitted accurate returns, maintains full and accurate records, and is not a member of a group or consolidation with any other company for the purposes of VAT.
(m) None of the Purchased Entities is currently a “passive foreign investment company” as that term is defined in Code Section 1297(a).
(n) No withholding is required under Code Section 1445 in respect of the consideration payable under this Agreement.
Appears in 4 contracts
Sources: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.), Asset and Stock Purchase Agreement (Sensata Technologies B.V.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries Seller has (i) duly filed (or there have been caused to be filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) that are required to be filed by it on or prior with respect to any Tax relating to the date of this AgreementAssets, and each has paid or caused to be paid all Taxes that have become due as indicated thereon, except where such Tax Return is being contested in good faith by appropriate proceedings, or where the failure to so file or pay would not result in a Seller Material Adverse Effect or an Asset Material Adverse Effect. Seller has complied in all material respects with all applicable laws, rules and regulations relating to withholding Taxes relating to Transferred Employees. All Tax Returns relating to the Assets are true, correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) respects. There are no Liens liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, Assets except for Liens liens for Taxes not yet due and Permitted Encumbrances.
(b) Except as set forth in Schedule 4.14, no notice of deficiency or assessment has been received from any taxing authority with respect to liabilities for Taxes of Seller in respect of the Assets, which adequate reserves have not been established fully paid or finally settled, and any such deficiency shown in accordance with GAAP with full provision made for the payment thereofSchedule 4.14 is being contested in good faith through appropriate proceedings.
(c) Neither Except as set forth in Schedule 4.14, there are no outstanding agreements or waivers extending the Company nor any applicable statutory periods of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement limitation for Taxes associated with regard to Taxes reasonably likely to have a Company Material Adverse Effectthe Assets that will be binding upon Buyer after the Closing.
(d) No Audit (Except as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns set forth on Schedule 4.14, none of the Company or Assets is property that is required to be treated as being owned by any of its Subsidiaries and, other person pursuant to the knowledge so-called safe harbor lease provisions of former Section 168(f) of the CompanyCode, no such Audit and none of the Assets is threatened"tax-exempt use" property within the meaning of Section 168(h) of the Code.
(e) An Audit of each United States federal income Tax Return Schedule 4.14 sets forth the taxing jurisdictions in which Seller owns assets or conducts business that require a notification to a taxing authority of the Company transactions contemplated by this Agreement, if the failure to make such notification, or obtain Tax clearance certificates in connection therewith, would either require Buyer to withhold any portion of its Subsidiaries has been completed by the applicable Tax Authorities (consideration or the applicable statutes of limitation subject Buyer to any liability for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceSeller.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Unisource Energy Corp)
Taxes. (i) Copies of all Tax Returns now subject or potentially subject to IRS audit are attached to Schedule 3(j). Except as set forth on Schedule 3(j), each of CRA and its Subsidiaries has duly and timely filed all Tax Returns required to be filed by it, all such Tax Returns have been prepared in compliance with all applicable laws and regulations and are true, correct and complete in all respects. Except as set forth in Section 3.16 Schedule 3(j), all Taxes owed by each of CRA and its Subsidiaries, whether or not shown on any Tax Return, have been timely paid. CRA and its Subsidiaries have maintained adequate provision for Taxes payable by CRA and its Subsidiaries as of February 1, 1997, and such provision and funds (as adjusted for the passage of time through the Closing Date in accordance with the past custom and practices of each of CRA and its Subsidiaries in filing its Tax Returns) will be adequate for Taxes payable by CRA and its Subsidiaries as of the Company Disclosure Schedule:Closing Date. There are no Security Interests on any of the assets of CRA or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax. CRA has made available to the Merger Sub correct and complete copies of (A) its federal income Tax returns for the last five (5) taxable years and the corresponding balance sheets of CRA as of the end of such years and (B) other Tax Returns as requested by the Merger Sub.
(aii) Each Except as set forth on Schedule 3(j):
(A) each taxable period of CRA and each of its Subsidiaries either (A) has been audited by the relevant taxing authority or (B) has closed, so that no further assessment or collection of Tax may occur and such taxable period is not subject to review by any relevant taxing authority;
(B) neither CRA nor any of its Subsidiaries is the subject of a Tax audit or examination, has consented to extend the time, or is the beneficiary or any extension of time, in which any Tax may be assessed or collected by any taxing authority;
(C) neither CRA nor any of its Subsidiaries has received, or expects to receive, from any taxing authority any written notice of proposed adjustment, deficiency, underpayment of Taxes or any other such notice which has not been satisfied by payment or been withdrawn, and no claims have been asserted relating to such Taxes against CRA or any such Subsidiary;
(D) CRA and each of its Subsidiaries has withheld and paid all required Taxes in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other similar third party;
(E) neither CRA nor any of its Subsidiaries has filed a consent to the application of Section 341(f) of the Company Code;
(F) neither CRA nor any of its Subsidiaries will be required, as a result of (A) a change in accounting method for a Tax period beginning on or before the Closing Date, to include any adjustment under Section 481(c) of the Code (or any corresponding provision of state, local or foreign Tax law) in taxable income for any Tax period beginning on or after the Closing Date, or (B) any "closing agreement," as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Tax law), to include any item or income in or exclude any item of deduction from any Tax period beginning on or after the Closing Date;
(G) each of CRA and its Subsidiaries has (i) duly filed disclosed on its income Tax Returns all positions taken therein that could give rise to an accuracy-related penalty under Section 6662 of the Code (or there have been filed on its behalf) with the appropriate any corresponding provision of Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.law);
(bH) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company neither CRA nor any of its Subsidiaries has made any change payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Section 280G or Section 162(m) of the Code;
(I) within the last five years, no claim has been made by a taxing authority in accounting methods, received a ruling from jurisdiction where any of CRA or its Subsidiaries does not pay Taxes or file Tax Authority Returns that such entity is or signed an agreement with regard may be subject to Taxes reasonably likely to have a Company Material Adverse Effect.assessed by such jurisdiction;
(dJ) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or neither CRA nor any of its Subsidiaries has been completed by a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.period specified in Code Section 897(c)(1)(A)(ii);
(fK) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company neither CRA nor any of its Subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to the allocation, indemnification Tax allocation or sharing of Taxes.agreement; and
(hL) The Companysince August 3, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code)1992, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company CRA nor any of such its Subsidiaries (A) has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the affiliated group in which they are currently members and common parent of which was CRA) or (B) has any liability for the Company is the common parentTaxes of any Person (other than CRA and its Subsidiaries) under Treas. Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(iiii) With respect to completed pay periodsSchedule 3(j) sets forth as of February 4, 1996, the Company amount and each expiration date of its Subsidiaries has withheld from its employeesany net operating loss, independent contractorsnet capital loss, creditors, stockholders, customers and third partiesunused foreign tax credit, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions other unused credit of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of CRA and its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Stage Stores Inc), Merger Agreement (Stage Stores Inc), Merger Agreement (Anthony C R Co)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each The Company, each of its current Subsidiaries and each of its former Subsidiaries (in the case of any current or former Subsidiaries, during the period that such Subsidiary was or has been a Company and its Subsidiaries Subsidiary) has (i) duly and timely filed (or there have been has caused to be filed on its behalf) with the appropriate Tax Governmental Entities or Taxing Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date in respect of this Agreementany material Taxes, and each such which Tax Return is Returns were true, correct and complete in all material respects (or requests for extensions to file such Tax Returns have been timely filed, granted and have not expired), and true and complete copies of all such Tax Returns for the taxable period ended on or after January 1, 2006 have been made available to Parent, (ii) duly and timely paid in full (or the Company has paid on the Company Subsidiaries’ behalf) all material Taxes due with respect to the periods covered by such Tax Returns, (iii) duly and timely paid in full or withheld, or established adequate reserves in accordance with GAAP for, all material Taxes that are due and payable by it, whether or not such Taxes were asserted by the relevant Governmental Entity or Taxing Authority, (iv) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each Company Subsidiary through the date of this Agreement and (v) complied in all material respects with all Laws applicable to the withholding and payment over of Taxes and has timely withheld and paid over to, or, where amounts have not been so withheld, established an adequate reserve under GAAP for the payment to, the respective proper Governmental Entities or Taxing Authorities all material amounts required to be so withheld and paid over.
(b) There (i) is no deficiency, delinquency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or, to the knowledge of the Company, threatened against or with respect to the Company or any Company Subsidiary in respect of any material Taxes or material Tax Returns and (ii) duly paid are no requests for rulings or determinations in full respect of any material Taxes or material Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such Taxes or Tax Returns.
(c) No deficiency for any material Tax has been asserted or assessed by any Governmental Entity or Taxing Authority in writing against the Company or any Company Subsidiary (or, made to the knowledge of the Company or any Company Subsidiary, has been threatened or proposed), except for deficiencies which have been satisfied by payment, settled or been withdrawn or which are being diligently contested in good faith by appropriate proceedings and for which adequate accruals and reserves in its books and records have been established in accordance with GAAP GAAP.
(d) There are no tax sharing agreements, tax indemnity agreements or other similar agreements of any kind, whether or not written, with full provision respect to or involving the Company or any Company Subsidiary in effect.
(e) None of the Company or any Company Subsidiary has any liability for material Taxes as a result of having been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar Affiliated or consolidated group for tax purposes under state, local or foreign Law (other than a group the common parent of which is the Company), or has any liability for the material Taxes of any Person (other than the Company or the Company Subsidiaries) under Treasury Regulations Section 1.1502-6 (or there has been paid any similar provision of state, local or such foreign Law), or as a transferee or successor, by contract or otherwise.
(f) There are no material adjustments under Section 481 of the Code (or similar or analogous provision has been made on its behalf for its sole benefit and recourseof state, local or foreign Law) for income Tax purposes applicable to or required to be made by the payment ofCompany or any Company Subsidiary as a result of changes in methods of accounting or other events occurring on or before the date hereof.
(g) None of the Company or any Company Subsidiary will be required to include any material item of income in, all Taxes or exclude any material item of deduction from, taxable income for all periods any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the date Closing Date, (ii) “closing agreement” as described in Section 7121 of this Agreementthe Code (or any corresponding or similar provision of state, except for those Taxes being contested local or foreign Tax Law) executed on or prior to the Closing Date, (iii) intercompany transactions or excess loss account described in good faithTreasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) prepaid amount received on or prior to the Closing Date or (vi) otherwise as a result of a transaction or accounting method that accelerated an item of deduction into periods ending on or before the Closing Date or a transaction or accounting method that deferred an item of income into periods beginning after the Closing Date.
(bh) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereofCompany Subsidiary, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofPermitted Liens.
(ci) Neither the Company nor any of its Subsidiaries Company Subsidiary has made any change participated in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (“listed transaction” within the meaning of Treasury Regulations Section 1504(b) of the Code1.6011-4(b)(2), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently material claim, other than claims defeated or withdrawn, has been made since January 1, 2006 by an authority in force with respect to any matter relating to Taxes that could affect a jurisdiction where the Company or any of its SubsidiariesCompany Subsidiary has not filed Tax Returns that it is or may be subject to taxation by that jurisdiction.
(k) Neither the Company nor any Company Subsidiary shall become obligated has waived any statute of limitations in connection respect of material Taxes or agreed to any extension of time with regard to a material Tax assessment or deficiency (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course) since January 1, 2006.
(l) Neither the Company nor any Company Subsidiary has been a “controlled corporation” or a “distributing corporation” in any distribution of stock qualifying for tax-free treatment under Section 355 of the Code occurring during the two-year period ending on the date hereof or in a distribution which would otherwise constitute part of a “plan (or series of related transactions)” (within the meaning of Section 355(e) of the Code) in conjunction with the closing Merger.
(m) There is no power of attorney given by or binding upon the Merger Company or any Company Subsidiary with respect to Taxes for any period for which the payment statute of limitations (including any amount waivers or extensions) has not yet expired.
(n) The Company satisfies the exception described in Section 162(m)(11445(b)(6) of the Code.
Appears in 3 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(ai) Each of the Company and its Subsidiaries subsidiaries has (iA) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Governmental Entities all material Tax Returns (as hereinafter defineddefined below) required to be filed by it on or prior (giving effect to the date of this Agreement, all extensions) and each such Tax Return is Returns are true, correct and complete in all material respects and respects; (iiB) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid on its behalf) all material Taxes required to be paid by it; and (C) made provision in accordance with GAAP (or such provision has been made on its behalf for its sole benefit and recoursebehalf) for the payment of, all accrued Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.not yet due; and
(bii) There are no material Liens for Taxes upon any property or assets of the Company or any Subsidiary thereofsubsidiary of the Company, except for Liens for Taxes not yet due and or for Taxes which adequate reserves have been established are being contested in accordance with GAAP with full provision made for good faith, which are set forth in Section 3.1(m) of the payment thereofCompany Disclosure Schedule.
(ciii) Neither Each of the Company nor and its subsidiaries has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes (or similar provisions under any of its Subsidiaries has made any change in accounting methodsforeign laws) and has, received a ruling from any Tax Authority or signed an agreement with regard within the time and the manner prescribed by law, withheld and paid over to Taxes reasonably likely the proper Governmental Entities all material amounts required to have a Company Material Adverse Effectbe so withheld and paid over under applicable laws.
(div) No Audit (as hereinafter defined) by a Tax Authority is federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andsubsidiaries, to and neither the knowledge Company nor any subsidiary of the Company, no such Audit is threatenedCompany has received a written notice of any pending audits or proceedings.
(ev) An Audit Neither the Company nor any of each United States federal income its subsidiaries has granted in writing any power of attorney which is currently in force with respect to any Taxes or Tax Returns.
(vi) Neither the Company nor any of its subsidiaries has requested an extension of time within which to file any Tax Return in respect of a taxable year which has not since been filed and no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to Taxes or Tax Returns has been given by or on behalf of the Company or any of its Subsidiaries has subsidiaries.
(vii) Neither the Company nor any of its subsidiaries is a party to any agreement providing for the allocation or sharing of Taxes.
(viii) The federal income Tax Returns of the Company and of its subsidiaries have been completed examined by the applicable Tax Authorities taxing authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments material deficiencies were asserted as a result of such Audits examinations which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(gix) Neither the Company nor any of its Subsidiaries is a party to, subsidiaries has been included in any "consolidated," "unitary" or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
"combined" Tax Return (h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of other than Tax Returns which include only the Company and any of its subsidiaries) provided for under the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) laws of the Code)United States, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force foreign jurisdiction or any state or locality with respect to any matter relating to Taxes that could affect the Company or any of its SubsidiariesTaxes.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Fairfield Communities Inc), Merger Agreement (Cendant Corp), Merger Agreement (Cendant Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Seller has duly and its Subsidiaries has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior that were due and that relate directly to the date of this Agreement, and each Acquired Assets or the Business. All such Tax Return is correct Returns are true, correct, and complete in all material respects respects. All Taxes due and payable with respect to such Tax Returns (ii) duly whether or not shown as payable), or otherwise due and payable by Seller and relating to any Acquired Asset or the Business, have been timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) appropriate Governmental Authority. There are no existing Liens for Taxes upon on any property or assets of the Company or any Subsidiary thereof, except Acquired Assets other than for Liens statutory liens for Taxes not yet due and payable.
(b) Since the Balance Sheet Date, Seller has not (i) made, changed, or revoked any Tax election; (ii) settled any Tax claim; (iii) surrendered the right to any Tax refund; (iv) changed any accounting period for which adequate reserves have been established Tax purposes; (v) changed any method of accounting for Tax purposes; (vi) filed an amended Tax Return; or (vii) entered into any agreement with any Governmental Authority (including a “closing agreement” within the meaning of section 7121 of the Code), in accordance with GAAP with full provision made each case, to the extent solely and exclusively relating to the Acquired Assets or the Business and that would result in any increase in the Liability for the payment thereofTaxes of Purchaser.
(c) Neither Seller has timely and properly withheld (i) all required amounts from payments to its employees, agents, contractors, nonresidents, shareholders and other Persons and (ii) all sales, use, ad valorem, and value added Taxes, in each case, to the Company nor any of its Subsidiaries extent solely and exclusively relating to the Acquired Assets or the Business. Seller has made any change timely remitted all such Taxes to the proper Governmental Authority in accounting methods, received a ruling from any Tax Authority or signed an agreement accordance with regard to Taxes reasonably likely to have a Company Material Adverse Effectall applicable Laws.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard Seller has not extended any statute of limitations relating to any Taxes solely and exclusively relating to the Acquired Assets or the Business. No Governmental Authority has made a claim that Seller is obligated to pay Taxes or file Tax Returns as a result of conducting the Company Business, owning the Acquired Assets, or employing any employees in a jurisdiction in which Seller is not filing Tax Returns and paying Taxes. No audits or other proceedings are ongoing or threatened with respect to any Tax Return or Taxes of its Subsidiaries and, Seller that solely and exclusively relate to the knowledge of Acquired Assets or the Company, no such Audit is threatenedBusiness.
(e) An Audit of each United States federal income Seller does not have any obligation to pay Taxes, or share Tax Return of the Company or benefits, with another Person pursuant to any of its Subsidiaries has been completed by the applicable Tax Authorities Contract that Purchaser is assuming pursuant to this Agreement (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidany Contract that is an Acquired Asset).
(f) There are no agreements, consents No Tax holiday or waivers to extend the statutory period of limitations applicable to the assessment Tax incentive or payment of grant in any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries jurisdiction with respect to Taxes solely and exclusively relating to the Business or the Acquired Assets will terminate (or be subject to a clawback or recapture that is payable by Purchaser) as a result of any Taxes is in forcetransaction contemplated by this Agreement.
(g) Neither the Company nor Seller does not have a request for a private letter ruling, a request for administrative relief, a request for technical advice, a request for a change of any method of its Subsidiaries is a party toaccounting, or is bound by, any agreement, arrangement or policy relating other request pending with any Governmental Authority that solely and exclusively relates to the allocation, indemnification Acquired Assets or sharing of Taxesthe Business.
(h) The Company, as the common parent of No Acquired Asset represents an affiliated group of corporations (as defined interest in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return any Flow-Thru Entity for United States federal income any applicable Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentpurpose.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Cemtrex Inc), Asset Purchase Agreement (Cemtrex Inc), Asset Purchase Agreement (Globe Photos, Inc.)
Taxes. Except as set forth would not have, individually or in Section 3.16 of the aggregate, a Company Disclosure ScheduleMaterial Adverse Effect:
(a) Each of All Tax Returns (other than any Parent Tax Return) required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, the Company or any of its Subsidiaries have been filed when due in accordance with all Applicable Law (taking into account all extensions), and all such Tax Returns are correct and complete.
(b) The Company and each of its Subsidiaries has (i) duly filed paid (or there have been filed has had paid on its behalf) with to the appropriate Tax Authorities Taxing Authority all Taxes due and payable, except for Parent Taxes or Taxes being contested in good faith and for which adequate accruals or reserves have been established on the financial statements of the Company.
(as hereinafter definedc) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to As of the date of this Agreement, and each such Tax Return there is correct and complete in all material respects and (ii) duly paid in full no claim, audit, action, suit, proceeding or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date Company’s Knowledge, investigation now pending or, to the Company’s Knowledge, threatened in writing against or with respect to the Company or its Subsidiaries in respect of this Agreement, except for those Taxes being contested in good faithany Tax (other than any Parent Tax).
(bd) There are no Liens for Taxes (other than Parent Taxes or Permitted Liens) upon any property or of the assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofof its Subsidiaries.
(ce) Neither the Company nor any of its Subsidiaries has made any change participated in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect“listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2).
(df) No Audit (as hereinafter defined) Each of the Company and its Subsidiaries has deducted, withheld and paid to the appropriate Governmental Authority all Taxes required to be deducted, withheld or paid by a Tax Authority is presently pending it in connection with regard amounts paid or owing to any Taxes employee, independent contractor, creditor, customer, stockholder, supplier or other Third Party.
(g) In the three years prior to the date of this Agreement, no written claim has been made by any Taxing Authority in a jurisdiction in which each of the Company and each of its Subsidiaries does not file a particular type of Tax Returns Return (other than any Parent Tax Return) or pay a particular type of Tax (other than any Parent Tax) that the Company or any of its Subsidiaries and, is or may be required to the knowledge file such type of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes pay such type of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the CodeTax), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and in such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentjurisdiction.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Santander Holdings USA, Inc.), Merger Agreement (Santander Consumer USA Holdings Inc.), Merger Agreement (Santander Holdings USA, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each The Company and each of its Subsidiaries (and any affiliated, consolidated, combined, unitary or aggregate group for Tax purposes of which the Company and its Subsidiaries or any such Subsidiary is or has been a member) (i) duly have properly completed and timely filed (or there have been had timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Authority all income and other material Tax Returns (as hereinafter definedboth terms are defined below) and all material elections required to be filed by it on or prior to the date of this Agreement, and each all such Tax Return is Returns are true, correct and complete in all material respects and respects, (ii) duly have complied with all material applicable information reporting requirements relating to material Taxes, (iii) have timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been will timely pay) to the appropriate Tax Authority all material Taxes required to be paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or by it prior to the date Closing Date or, in the case of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for such Taxes not yet due and for which payable, have established in the Balance Sheet an adequate reserves have been established accrual or reserve in accordance with GAAP with full provision made for the payment thereofof such Taxes, (iv) have not incurred, since the date of the Balance Sheet, any material liability for Taxes other than in the ordinary course of business, and (iv) have no material liability for Taxes in excess of the amount of accruals or reserves so established in the Balance Sheet.
(cb) Neither the Company nor any of its Subsidiaries has made received any change in accounting methods, received a ruling written notification from any Tax Authority regarding any issues that (i) are currently pending before any Tax Authority regarding the Company or signed an agreement with regard to Taxes reasonably likely to any of its Subsidiaries, or (ii) have a Company Material Adverse Effectbeen raised in writing by any Tax Authority and not yet finally resolved.
(dc) No Audit (as hereinafter defined) by material Liens relating to a Tax Authority is presently pending with regard to material amount of Taxes are currently in effect against any Taxes or Tax Returns of the assets of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedother than Permitted Liens.
(ed) An Audit of each United States federal income Tax Return of No material deficiencies for Taxes with respect to the Company or any of its Subsidiaries have been claimed, proposed or assessed, in each case in writing, by any Tax Authority that has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved with all amounts due either paid or accrued as a liability in the Balance Sheet to the extent required by GAAP. No material federal, state, local or foreign audit, examination, contest, administrative or judicial tax proceeding is presently pending with regard to any material Taxes or material Tax Returns of the Company and fully paidits Subsidiaries and no such audit, examination, contest, administrative or judicial tax proceeding has been threatened in writing.
(fe) There are no outstanding requests, agreements, consents or waivers to extend regarding the statutory period application of the statute of limitations applicable to the assessment or payment of any material amounts of Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either granted by the Company or any of its Subsidiaries with respect to any Taxes is currently in force.
(f) Neither 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, aggregate, or any similar group for U.S. federal, state, local or foreign Tax purposes, other than the group of which the Company or any of its Subsidiaries is the common parent or (ii) any liability for or in respect of the Taxes of, or determined by 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).
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound byby or has any material obligation under any Tax sharing, any agreementTax indemnity, arrangement or policy relating to the allocation, indemnification Tax allocation agreement or sharing of Taxes.
similar contract or agreement (h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect such agreement or similar contract between or among the Company or any of its Subsidiaries).
(h) No material claim 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 a material amount Tax by that jurisdiction.
(i) The Company and its Subsidiaries have withheld and paid all material Taxes required to have been withheld and paid in connection with material amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(j) 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.
(k) Neither the Company nor any Subsidiary shall become obligated of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in connection with the closing a distribution of stock qualifying under Section 355 of the Merger for Code (i) in the payment two years prior to the date hereof or (ii) in a distribution that could otherwise constitute part of any amount described in a “plan” or “series of related transactions” (within the meaning of Section 162(m)(1355(e) of the Code) in conjunction with the Merger.
(l) As used in this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.), Merger Agreement (SP Bancorp, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has Acquired Companies (i) duly has timely filed (or there have been had filed on its their behalf) with the appropriate Tax Authorities (as hereinafter defined) all material Tax Returns (as hereinafter defined) required to be filed by it any of them (after giving effect to any filing extension granted by a Governmental Body) and (ii) has paid (or had paid on their behalf) or prior to the date of this Agreement, and each will timely pay Taxes (whether or not shown on such Tax Return is Returns) that are required to be paid by it. Such Tax Returns are true, correct and complete in all material respects and (ii) duly paid respects. The most recent financial statements contained in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or Company SEC Reports filed prior to the date hereof reflect an adequate reserve (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) for all Taxes payable by the Acquired Companies for all taxable periods and portions thereof through the date of this Agreementsuch financial statements, and Taxes payable by the Acquired Companies on the Closing Date will not exceed such reserve as adjusted through the Closing Date in accordance with the past custom and practice of any of the Acquired Companies in filing their Tax Returns. True and complete copies of all federal Tax Returns that have been filed with the IRS by the Company Parties with respect to the taxable years commencing on or after January 1, 2004, have been provided or made available to Representatives of Parent prior to the date hereof. None of the Acquired Companies has executed or filed with the IRS or any other Taxing Authority any agreement, waiver or other document or arrangement extending the period for assessment or collection of material Taxes (including any applicable statute of limitation), which waiver or extension is currently in effect, and, except for those Taxes being contested as set forth in good faithSection 4.11(a) of the Disclosure Letter, no power of attorney with respect to any Tax matter is currently in force with respect to any of the Acquired Companies.
(b) There are no Liens The Company, (i) for Taxes upon any property or assets each taxable year of its existence has been subject to taxation as a real estate investment trust (“REIT”) within the meaning of Section 856 of the Code and has been organized and operated in conformity with the requirements for qualification and taxation as a REIT for such years, (ii) has operated to the date hereof in a manner that will permit it to qualify as a REIT for the taxable year that includes the date hereof, and (iii) shall continue to operate in such a manner as to permit it to continue to qualify as a REIT for the taxable year of the Company that includes the Closing Date (excluding, in the case of clause (iii), the distribution requirements). The Company has not taken any action or omitted to take any Subsidiary thereofaction that would reasonably be expected to result in a successful challenge by the IRS to its status as a REIT, except and no challenge to the Company’s status as a REIT is pending or has been threatened in a writing delivered to the Company or, to the knowledge of the Acquired Companies, otherwise threatened. Excluding any Person in which the Company holds an equity interest of ten percent (10%) or less by both vote and value, within the meaning of Code Section 856(c)(4)(B)(iii), the Company does not own any interest (including through any Acquired Company) in any Person that is a corporation for Liens for Taxes U.S. federal income tax purposes, other than a corporation that qualifies as a “qualified REIT subsidiary,” within the meaning of Section 856(i)(2) of the Code, or as a “taxable REIT subsidiary,” within the meaning of Section 856(1) of the Code. The Company is not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for receiving or accruing any amount, directly or indirectly, that would be excluded from “rents from real property” pursuant to Section 856(d)(2)(B) of the payment thereofCode.
(c) Neither Each Subsidiary of the Company nor any that is a partnership, joint venture, or limited liability company and that has not elected to be a “taxable REIT subsidiary” within the meaning of Code Section 856(1) (i) has been since its formation treated for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation and (ii) has not, since the later of its Subsidiaries has made formation or the acquisition by the Company of a direct or indirect interest therein, owned any change in accounting methods, received a ruling from assets (including securities) that have caused the Company to violate Section 856(c)(4) of the Code or would cause the Company to violate Section 856(c)(4) of the Code on the last day of any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectcalendar quarter after the date hereof.
(d) No Audit None of the Acquired Companies holds any asset the disposition of which would be subject to rules similar to Section 1374 of the Code.
(as hereinafter definede) by The Acquired Companies have not incurred any liability for material Taxes under sections 856(c), 856(g), 857(b), 860(c) or 4981 of the Code or any rules similar to Section 1374 of the Code and (ii) none of the Acquired Companies has incurred any liability for Taxes that have become due and that have not been previously paid other than in the ordinary course of business. To the knowledge of the Acquired Companies, no event has occurred, and no condition or circumstance exists, which would reasonably be expected to result in any Tax described in the preceding sentence being imposed on the Company. None of the Acquired Companies has engaged at any time in any “prohibited transactions” within the meaning of Section 857(b)(6) of the Code. To the knowledge of the Acquired Companies, none of the Acquired Companies has engaged in any transaction that would give rise to “redetermined rents, redetermined deductions and excess interest” described in section 857(b)(7) of the Code. To the knowledge of the Acquired Companies, no event has occurred, and no condition or circumstance exists, that presents a risk that any Tax Authority is presently pending described in the preceding two (2) sentences will be imposed on any of the Acquired Companies.
(f) All deficiencies asserted or assessments made with regard respect to any Taxes or Tax Returns of the Company Acquired Companies by the IRS or any other Taxing Authority covering or including any of its Subsidiaries the Acquired Companies have been fully paid, and, to the knowledge of the Company, there are no other material audits, examinations or other proceedings relating to any Taxes of the Acquired Companies by any Taxing Authority in progress. Except as set forth in Section 4.11(f) of the Disclosure Letter, none of the Acquired Companies has received any written notice from any Taxing Authority that it intends to conduct such an audit, examination or other proceeding in respect of Taxes or make any assessment for Taxes. To the knowledge of the Acquired Companies, no audit, examination, or other proceeding is threatened. None of the Acquired Companies is a party to any litigation or pending litigation or administrative proceeding relating to Taxes.
(g) The Acquired Companies have complied, in all material respects, with all applicable Legal Requirements relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, and 3402 of the Code or similar provisions under any foreign Legal Requirements) and have duly and timely withheld and have paid over to the appropriate Taxing Authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Legal Requirements.
(h) No claim has been made in a writing delivered to the Company or applicable Acquired Company by a Taxing Authority in a jurisdiction where any of the Acquired Companies does not file Tax Returns that any of the Acquired Companies is or may be subject to taxation by that jurisdiction, and to the knowledge of the Acquired Companies, no such Audit claim is threatened.
(ei) An Audit Except as set forth in Section 4.11(i) of each United States federal income the Disclosure Letter, none of the Acquired Companies has requested any extension of time within which to file any material Tax Return, which material Tax Return of the Company or any of its Subsidiaries has not yet been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidfiled.
(fj) There are no agreements, consents or waivers to extend None of the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect Acquired Companies is a party to any Taxes is in forceTax sharing or similar agreement or arrangement pursuant to which it could have any obligations after the Closing.
(gk) Neither None of the Company nor any of its Subsidiaries is Acquired Companies has requested a party to, private letter ruling from the IRS or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxescomparable rulings from other taxing authorities.
(hl) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 None of the Code) consisting solely of the Acquired Companies (other than an Acquired Company and the Subsidiaries that are "includable corporations" (is a “taxable REIT subsidiary” within the meaning of Section 1504(b856(l) of the Code), ) (i) is or has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has ever been a member of an affiliated group filing a consolidated United States federal income Tax Return other than or (ii) has any liability for the affiliated group in which they are currently members and Taxes of which the Company is the common parentanother Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Legal Requirement), as a transferee or successor or by Contract or otherwise.
(im) With respect to completed pay periodsOther than Permitted Encumbrances, there are no Encumbrances for Taxes (other than Taxes not yet due and payable for which adequate reserves have been made in accordance with GAAP) upon any of the Company and each assets of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to any of the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawAcquired Companies.
(jn) No power of attorney There is no Tax Protection Agreement currently in force with respect and, as of the date of this Agreement, no Person has raised in writing, or to any matter relating the knowledge of the Acquired Companies, threatened to Taxes that could affect the Company or raise, a claim against any of its Subsidiariesthe Acquired Companies for any breach of any Tax Protection Agreement.
(ko) Neither the Company nor any Subsidiary shall become obligated in connection with the closing None of the Merger for the payment of Acquired Companies is a party to any amount understanding or arrangement described in Section 162(m)(16662(d)(2)(C)(ii) of the Code or Treasury Regulations Section 1.6011-4(b) or is a material advisor as defined in Section 6111(b) of the Code.
(p) None of the Acquired Companies has entered into 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).
(q) Subject to the necessary conditions set forth in Section 4.11(q) of the Disclosure Letter, the Company has the right to make or to require, and, after the Merger Effective Time will continue to have the right to make or to require, each entity in which any Acquired Company owns an equity interest in and that is subject to federal income tax as a partnership to make an election under Section 754 of the Code (and any corresponding elections under state or local tax law) to adjust the basis of its property as provided in Sections 734(b) and 743(b) of the Code.
(r) Section 4.11(r) of the Disclosure Letter sets forth each entity in which any of the Acquired Companies owns an equity interest and states whether such entity is classified as a partnership, disregarded entity, or a corporation for federal income tax purposes. In the case of an entity classified as a corporation for federal income tax purposes, such schedule states whether an effective election has been made to treat such entity as a “taxable REIT subsidiary” under Section 856(l) of the Code.
(s) To the knowledge of the Acquired Companies, as of the date hereof, the Company is a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4)(B) of the Code.
(t) As used herein, “Tax Protection Agreement” means any written or oral agreement to which any of the Acquired Companies is a party or otherwise subject pursuant to which: (a) any liability to holders of partnership interests in any Subsidiary of the Company relating to Taxes may arise, whether or not as a result of the consummation of any of the Merger Transactions; (b) in connection with the deferral of income Taxes of a holder of partnership interests of any Subsidiary of the Company, any of the Acquired Companies has agreed to (i) maintain a minimum level of debt or continue a particular debt or allocate a certain amount of debt to a particular partner, (ii) retain or not dispose of assets for a period of time that has not since expired, (iii) make or refrain from making Tax elections and/or (iv) only dispose of assets in a particular manner; and/or (c) limited partners of the Operating Partnership (i) have guaranteed Debt of the Operating Partnership or any Subsidiary thereof or (ii) agreed to indemnify another Person with respect to such Person’s liability for Debt of the Operating Partnership or any Subsidiary thereof.
Appears in 3 contracts
Sources: Merger Agreement (Winston Hotels Inc), Merger Agreement (Winston Hotels Inc), Merger Agreement (Inland American Real Estate Trust, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) All material tax returns required to be filed by it on the Borrower or prior to the date any of this Agreementits Subsidiaries in any jurisdiction have, and each in fact, been filed, all such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records tax returns have been prepared in accordance with GAAP with full provision (applicable laws, and all material taxes, assessments, fees and other governmental charges upon the Borrower or there has any Subsidiary or upon any of their respective properties, income or franchises, which are shown on such material tax returns have been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior except to the date of this Agreement, except for those Taxes extent such tax payments are being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith by appropriate proceedings and for with respect to which adequate reserves have been established or other appropriate provisions are being maintained in accordance with GAAP Agreement Accounting Principles. For all taxable years ending on or before December 31, 1996, the United States Federal income tax liability of the Borrower and its Subsidiaries has been satisfied and either the period of limitations on assessment of additional United States Federal income tax has expired or the Borrower or the applicable Subsidiary has entered into an agreement with full provision made the United States Internal Revenue Service closing conclusively the total tax liability for the payment thereof.
(c) taxable year. Neither the Company Borrower nor any of its Subsidiaries has made knows of any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company proposed additional tax assessment against it or any of them for which adequate provision has not been made on its Subsidiaries andor their accounts, and no controversy in respect of additional income or other taxes due or claimed to be due to any Governmental Authority is pending or to the knowledge of the CompanyBorrower or its Subsidiaries threatened the outcome of which could reasonably be expected to have a Material Adverse Effect. The charges, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return accruals and reserves on the books of the Company or any of Borrower and its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment in respect of any Taxes taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceother governmental charges are adequate.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Credit Agreement (Omnicare Inc), Credit Agreement (Omnicare Inc), Credit Agreement (Omnicare Inc)
Taxes. (a) Except as set forth would not reasonably be expected to have, individually or in Section 3.16 of the Company Disclosure Scheduleaggregate, a Firefly Material Adverse Effect:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed by it Firefly or any of its Subsidiaries have been duly and timely filed (taking into account valid extensions of time for filing), and all such Tax Returns are complete and accurate in all respects. All Taxes that are due and payable by Firefly or any of its Subsidiaries (whether or not reflected on any Tax Return) have been duly and timely paid or adequate reserves in respect thereof have been established on the financial statements of Firefly in accordance with GAAP. All withholding Tax requirements imposed on or prior with respect to the date payments by Firefly or any of this Agreementits Subsidiaries to employees, creditors, equityholders or other Persons have been satisfied, and each such Tax Return is correct Firefly and complete its Subsidiaries have complied in all material respects with all related information reporting and record retention requirements.
(ii) duly paid There is not in full orforce any waiver or agreement for any extension of time for the assessment or payment of any Tax by Firefly or any of its Subsidiaries (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business).
(iii) There is no outstanding claim, made adequate accruals and reserves in assessment or deficiency against Firefly or any of its books and records in accordance with GAAP with full provision (or there Subsidiaries for any Taxes that has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes asserted in writing by any Taxing Authority other than claims being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith through appropriate proceedings and for which adequate reserves have been established on the financial statements of Firefly in accordance with GAAP GAAP. There are no Proceedings with full provision made for the payment thereofrespect to Taxes pending or threatened in writing against Firefly or any of its Subsidiaries.
(civ) Neither the Company Firefly nor any of its Subsidiaries has made any change in accounting methodsbeen a member of an affiliated, received a ruling from consolidated, combined, unitary or similar group for purposes of filing any Tax Authority Return (other than a group the common parent of which is Firefly or signed an agreement with regard to any of its Subsidiaries) or has any liability for Taxes reasonably likely to have of any Person (other than Firefly or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or foreign Law), as a Company Material Adverse Effecttransferee or successor, by reason of assumption or by operation of Law.
(dv) No Audit (as hereinafter defined) written claim has been made by any Taxing Authority in a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company jurisdiction where Firefly or any of its Subsidiaries and, does not currently file a Tax Return that Firefly or such Subsidiary is or may be subject to the knowledge of the Company, no any Tax or required to file any Tax Return in such Audit is threatenedjurisdiction.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(fvi) There are no agreements, consents or waivers to extend Encumbrances for Taxes on any of the statutory period assets of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company Firefly or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries except for Permitted Encumbrances with respect to any Taxes is described in forceclause (b) of the definition of Permitted Encumbrances.
(gb) Neither the Company Firefly nor any of its Subsidiaries is a party to, has any obligation under or is bound byby any material Tax allocation, sharing or indemnity Contract or arrangement pursuant to which it will have any agreementpotential material liability to any Person after the Company Merger Effective Time (excluding (i) any Contract or arrangement solely between or among Firefly and/or any of its Subsidiaries, arrangement or policy and (ii) any customary provisions contained in any commercial agreement entered into in the ordinary course of business and not primarily relating to the allocation, indemnification or sharing of TaxesTax).
(hc) The CompanyNeither Firefly nor any of its Subsidiaries has participated, as the common parent of an affiliated group of corporations (or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(d) Neither Firefly nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 1504 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) consisting solely (i) in the two (2) years prior to the date of the Company and the Subsidiaries that are "includable corporations" this Agreement or (ii) as part of a “plan” or “series of related transactions” (within the meaning of Section 1504(b355(e) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither ) in conjunction with the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentTransactions.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(je) No power material closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into with or issued by any Taxing Authority within the three (3)-year period immediately preceding the date of attorney is currently in force this Agreement with respect to any matter relating to Taxes that could affect the Company Firefly or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and each of its Subsidiaries has (i) have prepared in good faith and duly and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter definedtaking into account any extension of time within which to file) all Tax Returns (as hereinafter defineddefined below) required to be filed by it on or prior to the date any of this Agreement, them and each all such filed Tax Return is correct Returns are complete and complete accurate in all material respects and respects; (ii) duly have paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision all Taxes (as defined below) that are shown as due on such filed Tax Returns (or there has been paid that are otherwise due and payable) or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of that the Company or any Subsidiary thereofof its Subsidiaries are obligated to withhold from amounts owing to any employee, creditor or third party, except for Liens for Taxes not yet due with respect to matters contested in good faith and for which adequate reserves have been established in accordance with GAAP GAAP; and (iii) have not waived any statute of limitations with full provision respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. As of the date hereof, there are not pending or, to the knowledge of the Company, threatened, any audits, examinations, investigations or other proceedings in respect of Taxes or Tax matters. There are not, to the knowledge of the Company, any material unresolved questions or claims concerning the Company’s or any of its Subsidiaries’ Tax liability. The Company has made available to Parent true and correct copies of the United States federal income Tax Returns filed by the Company and its Subsidiaries for each of the payment thereof.
(c) three most recent fiscal years. The consolidated United States federal income Tax Returns of the Company have been examined, or the statutes of limitations have closed, with respect to all taxable years through and including 2004. To the knowledge of the Company, no claim has been made in the previous five years by a taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction. Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from liability for Taxes of any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
Person (d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6, any comparable provision of U.S., state, local or any of its Subsidiaries andforeign law, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of or otherwise. Neither the Company or nor any of its Subsidiaries has been completed by the applicable Tax Authorities a party to a “reportable transaction” (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes that term is defined in force.
(g) Treasury Regulation Section 1.6011-4(b)(1)). Neither the Company nor any of its Subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to the allocation, indemnification or Tax sharing of Taxes.
agreement (h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of with any Person other than the Company and the Subsidiaries that are "includable corporations" (within the meaning and/or any of Section 1504(b) of the Codeits Subsidiaries), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither . Neither the Company nor any of such its Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than party to any distribution occurring during the affiliated group last 30 months in which they are currently members and the parties to such distribution treated the distribution as one to which Section 355 of which the Company is the common parent.
Code (ior any similar provision of state, local or foreign law) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate applied. Each material Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect election made by the Company or any of its Subsidiaries.
Subsidiaries has been timely and properly made. As used in this Agreement, (ki) Neither the Company nor any Subsidiary shall become obligated in connection term “Tax” (including, with correlative meaning, the closing of the Merger for the payment term “Taxes”) includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any amount described nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in Section 162(m)(1respect of such penalties and additions, and (ii) of the Codeterm “Tax Return” includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority relating to Taxes.
Appears in 3 contracts
Sources: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Holding Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a1) Each of the Company Sirius and its Subsidiaries each Sirius Subsidiary has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Governmental Authority all Tax Returns (as hereinafter defined) required to be filed by it on or prior filed, taking into account any extension of time within which to the date of this Agreementfile such Tax Returns, and each all such Tax Return is correct Returns are complete and complete correct, subject in all material respects each case to such exceptions as have not resulted in a Material Adverse Effect with respect to Sirius. Sirius and (ii) each Sirius Subsidiary has duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid on their behalf), or such provision made adequate provisions for, all material Taxes required to be paid by them, whether or not shown on any Tax Return. Neither Sirius nor any Sirius Subsidiary has been made on its behalf for its sole benefit received a written claim, or to the Knowledge of Sirius, an unwritten claim, by any authority in a jurisdiction where any of them does not file Tax Returns that it is or may be subject to material Tax in that jurisdiction. Sirius and recourse) each Sirius Subsidiary have established reserves in accordance with GAAP that are adequate for the payment of, of all material Taxes not yet due and payable with respect to each of them through the date of the most recent Sirius Financial Statements.
(2) Sirius (i) for all periods ending on or prior taxable years commencing with Sirius’ initial taxable year ended December 31, 2004 through December 31, 2015, has been subject to taxation as a REIT and has satisfied all requirements to qualify for taxation as a REIT; (ii) has operated since January 1, 2016 to the date hereof in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner so that it (including New Sirius in its capacity as successor to Sirius) will qualify as a REIT through the Sirius-Polaris Merger Effective Time; (in the case of this Agreementeach of clauses (i), (ii), and (iii), independent of, and without having to comply with, any (A) procedure for payment of a material deficiency or other post-Closing dividend for any taxable year, or (B) provision for relief from any requirement of the Code which may be available from the IRS on a discretionary basis or only upon the payment of a material excise, penalty or similar Tax), and (iv) has not taken or omitted to take any action if such action or omission, as the case may be, could reasonably be expected to result in a challenge by the IRS or any other Governmental Authority to its status as a REIT, and to the Knowledge of Sirius, no such challenge is pending or has been threatened in writing. Section 4.02(o)(2) of the Sirius Disclosure Letter sets forth a true, correct and complete list identifying each Sirius Subsidiary that is a Qualified REIT Subsidiary, a Taxable REIT Subsidiary or any other entity treated as a corporation for U.S. federal income tax purposes. New Sirius has at all times since its formation been treated as a Qualified REIT Subsidiary of Sirius until the New Holdco Merger Effective Time.
(3) Neither Sirius nor New Sirius has any earnings and profits attributable to itself or any other corporation accumulated in any non-REIT year within the meaning of Section 857 of the Code.
(4) Neither Sirius nor any Sirius Subsidiary (other than a Taxable REIT Subsidiary) has engaged at any time in any “prohibited transactions” within the meaning of Section 857(b)(6) of the Code. Neither Sirius nor any Sirius Subsidiary has engaged in any transaction that would give rise to “redetermined rents,” “redetermined deductions,” “redetermined TRS service income,” or “excess interest” described in Section 857(b)(7) of the Code. No event has occurred, and no condition or circumstance exists, which presents a material risk that any material Tax described in the preceding sentences will be imposed on Sirius or any Sirius Subsidiary.
(5) There are no audits, investigations by any Governmental Authority or other proceedings ongoing or, to the Knowledge of Sirius threatened, with regard to any material Taxes or material Tax Returns of Sirius or any Sirius Subsidiary. No deficiency for Taxes of Sirius or any Sirius Subsidiary has been claimed, proposed or assessed in writing or, to the Knowledge of Sirius, threatened, by any Governmental Authority, which deficiency has not yet been settled, except for those Taxes such deficiencies which are being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith by appropriate proceedings and for which adequate reserves have been established made or with respect to which the failure to pay has not resulted in accordance a Material Adverse Effect with GAAP respect to Sirius Neither Sirius nor any Sirius Subsidiary has waived any statute of limitations with full respect to material Taxes, or agreed to any extension of time with respect to any material Tax assessment or deficiency for any open tax year (in each case other than in connection with any extension of time to file any Tax Return). Neither Sirius nor any Sirius Subsidiary has entered into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision made for the payment thereofof state, local or foreign income Tax Law) with regard to material Taxes.
(c6) Neither the Company Sirius nor any Sirius Subsidiary holds any asset the disposition of which would be subject to (or to rules similar to) Section 337(d) or Section 1374 of the Code or the regulations thereunder or to the “prohibited transactions” Tax under Section 857(b)(6), nor has it disposed of any such asset during its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectcurrent taxable year.
(d7) No Audit Sirius and each of the Sirius Subsidiaries have complied, in all material respects, with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471 and 3402 of the Code or similar provisions under any foreign Laws) and have duly and timely withheld and have paid over to the appropriate Governmental Authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(8) There are no Sirius Tax Protection Agreements (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes in force or Tax Returns of the Company otherwise binding upon Sirius or any of its Subsidiaries andSirius Subsidiary. No person has raised in writing, or to the knowledge Knowledge of the CompanySirius, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company threatened to raise a material claim against Sirius or any Sirius Subsidiary for any breach of its Subsidiaries has been completed by the applicable any Sirius Tax Authorities Protection Agreements. As used herein, “Sirius Tax Protection Agreements” means any agreement to which Sirius, or any Sirius Subsidiary is a party: (i) pursuant to which any liability to holders of interests in a Sirius Subsidiary Partnership relating to Taxes may arise, whether or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted not as a result of such Audits which have the consummation of the Transactions; and/or (ii) that was entered into in connection with or related to the deferral of income Taxes of a holder of interests in a Sirius Subsidiary Partnership, and that requires Sirius, or any Sirius Subsidiary to, or to use efforts to (or to indemnify any person if it does not) (A) maintain a minimum level of debt or continue a particular debt, (B) retain or not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory dispose of assets for a period of limitations applicable to the assessment or payment time if such period of any Taxes or deficiencies against the Company time has not since expired or any applicable statute of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries limitations with respect to any Taxes is that would result from a disposition of such assets at any time during such period has not since expired, (C) make or refrain from making Tax elections, (D) only dispose of assets in force.
a particular manner, or (gE) Neither the Company nor permit any holder of its Subsidiaries interests in a Sirius Subsidiary Partnership to guarantee any debt or restore a deficit in such holder’s capital account. As used herein, “Sirius Subsidiary Partnership” means a Sirius Subsidiary that is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return partnership for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parenttax purposes.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Northstar Realty Finance Corp.), Merger Agreement (Colony Capital, Inc.), Merger Agreement (Barrack Thomas Jr)
Taxes. (a) Except as set forth in Section 3.16 3.13 of the Company Company's Disclosure Schedule:
(ai) Each of the Company and its Subsidiaries has have (ix) duly filed (or there have been filed on its their behalf) with the appropriate Tax Authorities (as hereinafter defined) governmental authorities all Tax Returns (as hereinafter defined) required to be filed by it them on or prior to the date of this Agreementhereof, other than any filings which the failure to make in a timely manner would not have a material adverse effect on the Company and the Subsidiaries taken as a whole, it being understood that the failure to file a federal income Tax Return would have a material adverse effect on the Company and its Subsidiaries taken as a whole, and each such Tax Return is Returns are true, correct and complete in all material respects respects, and (iiy) duly paid in full or, or made adequate accruals and reserves in its books and records provision in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recoursetheir behalf) for the payment of, of all Taxes (as hereinafter defined) for all periods ending on or prior to through the date of this Agreement, except for those Taxes being contested in good faith.hereof;
(bii) There there are no Liens liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.due;
(ciii) Neither neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority taxing authority or signed an agreement with regard to Taxes reasonably likely to have a material adverse effect on the Company Material Adverse Effect.and its Subsidiaries, taken as a whole;
(div) No Audit the Company and its Subsidiaries have complied in all respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes (as hereinafter definedincluding, without limitation, withholding of Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any foreign laws) and have, within the time and the manner prescribed by a Tax Authority is law, withheld from employee wages and paid over to the proper governmental authorities all amounts required to be so withheld and paid over under applicable laws;
(v) no federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to and neither the knowledge Company nor its subsidiaries has received a written notice of the Company, no such Audit is threatened.any pending audits or proceedings;
(evi) An Audit of each United States the federal income Tax Return Returns of the Company or any of and its Subsidiaries has have been completed examined by the applicable Tax Authorities Service (or the applicable statutes of limitation for the assessment of federal income Taxes for such periods have expired) for all periods through and including 1996December 31, 1990, and no adjustments material deficiencies were asserted as a result of such Audits examinations which have not been finally resolved and fully paid.;
(fvii) There there are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to granted by either the Company or any of its Subsidiaries with respect to any Taxes is currently in force.;
(gviii) Neither neither the Company nor any of its Subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to agreement providing for the allocation, indemnification allocation or sharing of Taxes.;
(hix) The Companyneither the Company nor its Subsidiaries is a party to any agreement, as contract or arrangement (other than the common parent of an affiliated group of corporations (as defined employment contracts referenced in Section 1504 3.4 of the CodeCompany's Disclosure Schedule) consisting solely that could result, separately or in the aggregate, in the payment of the Company and the Subsidiaries that are any "includable corporationsexcess parachute payments" (within the meaning of Section 1504(b) 280G of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf and none of itself and the actions contemplated or permitted by this Agreement will result in any such Subsidiaries and payments;
(x) neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employeeshas, independent contractorswith regard to any assets or property held, creditorsacquired or to be acquired by any of them, stockholders, customers and third parties, and timely paid filed a consent to the appropriate Tax Authorityapplication of Section 341(f) of the Code, proper amounts in all material respects with all Tax withholding provisions or agreed to have Section 341(f)(2) of applicable law.
(j) No power of attorney is currently in force with respect the Code apply to any matter relating to Taxes that could affect disposition of a subsection (f) asset (as such term is defined in Section 341(f)(4) of the Code) owned by the Company or any of its Subsidiaries.;
(kxi) Neither the deductibility of compensation paid by the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in and/or its Subsidiaries will not be limited by Section 162(m)(1162(m) of the Code; and
(xii) all transactions that could give rise to an understatement of the federal income tax liability of the Company or any of its Subsidiaries within the meaning of Section 6662(d) of the Code are adequately disclosed on Tax Returns in accordance with Section 6662(d)(2)(B) of the Code if there is or was no substantial authority for the treatment giving rise to such understatement.
(b) The net operating loss carryovers available to the Company and its Subsidiaries are set forth in Section 3.13 of the Company's Disclosure Schedule. Except as set forth in Section 3.13 of the Company's Disclosure Schedule, as of the date of this Agreement, the net loss carryovers are not subject to limitations imposed by Sections 382, 383 or 384 of the Code (or any predecessor thereto) or otherwise.
Appears in 3 contracts
Sources: Merger Agreement (American Studios Inc), Merger Agreement (Pca International Inc), Merger Agreement (American Studios Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of Except as would not have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries has (i) duly have timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter definedtaking into account any valid extension of time within which to file) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date any of this Agreement, and each such Tax Return is correct and complete in all material respects and them; (ii) duly each of such filed Tax Returns (taking into account all amendments thereto) is complete and accurate; and (iii) all Taxes shown to be due on such Tax Returns have been timely paid in full orfull, made adequate accruals or withheld and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior remitted to the date of this Agreementappropriate taxing authority, except for those Taxes being contested in good faithfaith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements.
(b) Except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries has received written notice of, or has pending, in process, or otherwise outstanding, any audit, examination or other Action from any taxing authority in respect of liabilities for Taxes of the Company or any of its Subsidiaries: (ii) no deficiency with respect to any Taxes has been assessed or proposed in writing against the Company or any of its Subsidiaries that has not been fully paid, except with respect to Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements; and (iii) with respect to any tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment or collection of, any Tax.
(c) There are no Liens for Taxes upon on any property or of the assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofof its Subsidiaries other than Permitted Liens.
(cd) Except as would not have a Company Material Adverse Effect, no claim has been made in writing by any taxing authority in a jurisdiction in which the Company or any of its Subsidiaries has not filed a particular type of Tax Return or paid a particular type of Tax to the effect that the Company or such Subsidiary is required to file such Tax Return or pay such type of Tax in such jurisdiction.
(e) Neither the Company nor any of its Subsidiaries has made engaged in any change “listed transaction” as defined in accounting methods, received a ruling from any Tax Authority Treasury Regulations Section 1.6011-4(b)(2) or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse EffectTreasury Regulations Section 301.6111-2(b)(2).
(df) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of Neither the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or nor any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation any material liability for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against Person (other than the Company or any of its Subsidiaries, and no power ) under Section 1.1502-6 of attorney applicable to either the Company Treasury Regulations (or any corresponding or similar provision of its Subsidiaries with respect to any Taxes state, local, or non-U.S. Law), as a transferee or successor; or by contract (other than contracts entered into in the ordinary course of business the primary purpose of which is in forcenot Taxes).
(g) Neither the Company nor any of its Subsidiaries is a party towill be required to include any material item of income in, or is bound byto exclude any material item of deductions from, taxable income from any agreement, arrangement Tax period (or policy relating portion thereof) ending after the Closing as a result of any (i) change in method of accounting for a Tax period (or portion thereof) ending prior to the allocationClosing, indemnification (ii) closing agreement as described in Section 7121 of the Code executed prior to the Closing, (iii) change in method of accounting adopted prior to the Closing, (iv) open transaction disposition entered into prior to Closing outside the ordinary course of business, (v) prepaid amount received prior to Closing outside the ordinary course of business or sharing (vi) application of TaxesSection 965 of the Code or any related provisions applicable to controlled foreign corporations under federal, state, local or non-U.S. Law. Neither the Company nor any of its Subsidiaries has made an election under Section 965(h) of the Code.
(h) The Company, as the common parent There are no requests for rulings or determinations in respect of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal any income or other material Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor pending between any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries, on the one hand, and any taxing authority, on the other hand. None of the Company or any of its Subsidiaries has received or applied for 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, local or non-U.S. Law), in either case that would be binding upon the Company or any of its Subsidiaries after the Closing Date.
(i) The Company and its Subsidiaries have (i) to the extent applicable, properly complied with all requirements of applicable Tax Law in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, (ii) not deferred any payroll tax obligations pursuant to the CARES Act, (iii) to the extent applicable, properly complied with all requirements of applicable Tax Law and duly accounted for any available Tax credits under Sections 7001 through 7005 of the Families First Act and Section 2301 of the CARES Act, and (iv) not sought (nor has any Affiliate that would be aggregated with the Company or any Subsidiary thereof and treated as one employer for purposes of Section 2301 of the CARES Act sought) a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act.
(j) None of the Company nor any of its Subsidiaries has taken or failed to take any action that would reasonably be expected to adversely affect the tax-free status of the Internal Reorganization Transactions, the Contribution or the Distribution, each as defined in the Tax Matters Agreement dated as of June 28, 2018, by and between Autoliv, Inc. and the Company (the “Tax Matters Agreement”).
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of its Subsidiaries has (i) any material liability under Section 2.2(c) of the Merger for the payment of Tax Matters Agreement, (ii) taken any amount action described in Section 162(m)(18.3 of the Tax Matters Agreement without first obtaining a Supplemental Tax Opinion (as defined in the Tax Matters Agreement) or (iii) received a notice described in Section 7.1 of the Tax Matters Agreement.
(l) Since the Spin Date, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation,” or has otherwise participated, in a transaction intended to qualify under Section 355 of the Code.
(m) For purposes of this Section 4.15, all representations and warranties made with respect to the Company and its Subsidiaries are equally made with respect to any predecessor of the Company or any of its Subsidiaries that became such a predecessor following the Spin Date and any former Subsidiaries of the Company (with respect to all applicable periods following the Spin Date during or with respect to which such Subsidiaries were, or were treated as, Subsidiaries of the Company under applicable Tax Laws). The representations and warranties set forth in this Section 4.15 and, to the extent relating to Tax matters, Section 4.12, are the Company’s sole and exclusive representations with respect to Tax matters in this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Veoneer, Inc.), Merger Agreement (Qualcomm Inc/De), Merger Agreement (Veoneer, Inc.)
Taxes. Except as set forth The Company and each subsidiary has filed all Tax Returns which it is required to file under applicable laws; all such Tax Returns are true and accurate and have been prepared in Section 3.16 compliance with all applicable laws; the Company has paid all Taxes due and owing by it or any subsidiary (whether or not such Taxes are required to be shown on a Tax Return) and have withheld and paid over to the appropriate taxing authorities all Taxes which it is required to withhold from amounts paid or owing to any employee, stockholder, creditor or other third parties; and since December 31, 1999, the charges, accruals and reserves for Taxes with respect to the Company (including any provisions for deferred income taxes) reflected on the books of the Company Disclosure Schedule:
(a) Each are adequate to cover any Tax liabilities of the Company and if its Subsidiaries has (i) duly filed (or there have been filed current tax year were treated as ending on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision hereof. No claim has been made on its behalf for its sole benefit and recourse) for by a taxing authority in a jurisdiction where the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of Company does not file tax returns that the Company or any Subsidiary thereofsubsidiary is or may be subject to taxation by that jurisdiction. There are no foreign, federal, state or local tax audits or administrative or judicial proceedings pending or being conducted with respect to the Company or any subsidiary; no information related to Tax matters has been requested by any foreign, federal, state or local taxing authority; and, except for Liens for Taxes not yet due and for which adequate reserves have as disclosed above, no written notice indicating an intent to open an audit or other review has been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither received by the Company nor or any subsidiary from any foreign, federal, state or local taxing authority. There are no material unresolved questions or claims concerning the Company's Tax liability. The Company (A) has not executed or entered into a closing agreement pursuant to SECTION 7121 of its Subsidiaries the Internal Revenue Code or any predecessor provision thereof or any similar provision of state, local or foreign law; and (B) has made not agreed to or is required to make any adjustments pursuant to SECTION 481 (a) of the Internal Revenue Code or any similar provision of state, local or foreign law by reason of a change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) method initiated by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andsubsidiaries or has any knowledge that the IRS has proposed any such adjustment or change in accounting method, or has any application pending with any taxing authority requesting permission for any changes in accounting methods that relate to the knowledge business or operations of the Company, no such Audit is threatened.
(e) An Audit of each . The Company has not been a United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (real property holding corporation within the meaning of Section 1504(bSECTION 897(c)(2) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither Internal Revenue Code during the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group applicable period specified in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1SECTION 897(c)(1)(A)(ii) of the Internal Revenue Code.
SECTION 1. 1502-6 (or comparable provisions of state, local or foreign law), (B) as a transferee or successor, (C) by contract or indemnity or (D) otherwise. The Company is not a party to any tax sharing agreement. The Company has not made any payments, is not obligated to make payments nor is it a party to an agreement that could obligate it to make any payments that would not be deductible under SECTION 280G of the Internal Revenue Code. For purposes of this Section 3.1(o):
Appears in 3 contracts
Sources: Stock Purchase Agreement (Calypte Biomedical Corp), Stock Purchase Agreement (Calypte Biomedical Corp), Stock Purchase Agreement (Calypte Biomedical Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company All federal, state, local and its Subsidiaries has foreign tax returns, reports, declarations, statements, elections and other documents (i) duly filed (or there have been filed on its behalf) with the appropriate "Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter definedReturns") required to be filed by it on or prior in respect of the Company or any predecessor entity thereof, or any consolidated, combined, affiliated or unitary group of which the Company is or has ever been a member have been timely filed with the appropriate tax authorities in all jurisdictions in which such Tax Returns are or were required to the date of this Agreement, be filed or requests for extensions have been timely filed and each any such extensions have been granted and have not expired. Each such Tax Return is was true, complete and correct and complete in all material respects respects. The Company has made available to Buyer true, complete and (ii) duly paid correct copies of all Tax Returns. Notwithstanding the foregoing, the Company has not filed sales tax or transaction privilege tax returns with the state of New Jersey, nor any local taxing jurisdiction in full or, made adequate accruals and reserves in its books and records in accordance New Jersey. The Company shall be liable for any tax due with GAAP with full provision (or there has been paid or respect to such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior returns to the date of this Agreement, except for those Taxes being contested in good faithextent such returns are or were required.
(b) There are no Liens Other than possible sales taxes as described in Section 6.7(a), all Taxes with respect to taxable periods or portions thereof covered by such Tax Returns and all other Taxes (without regard to whether a Tax Return was or is required) for Taxes upon any property or assets of which the Company is otherwise liable that are due or any Subsidiary thereofpayable or that have been incurred by the Company have timely been paid in full and to the extent the liabilities for such Taxes are not due, except for Liens for Taxes not yet due and for which adequate reserves have been established with respect to such Taxes on the December 31, 2010 Balance Sheet in accordance with GAAP GAAP. Since the date of the December 31, 2010 Balance Sheet, the Company has not incurred any liability for Taxes arising from transactions outside the ordinary course of business consistent with full provision made for the payment thereofpast practices.
(c) Neither Other than possible sales taxes as described in Section 6.7(a), the Company nor any of has timely withheld proper and accurate amounts from its Subsidiaries employees, independent contractors, customers, shareholders and others from whom it is or was required to withhold Taxes in compliance with all applicable Laws and has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard timely and properly paid all such withheld amounts to Taxes reasonably likely to have a Company Material Adverse Effectthe appropriate taxing authorities.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending All Taxes due with regard respect to any Taxes completed and settled audit, examination or Tax Returns of deficiency Action with any taxing authority for which the Company or any of its Subsidiaries andpredecessor entity is or might otherwise be liable have been paid in full.
(e) There is no audit, examination, claim, levy, administrative proceeding or lawsuit pending or, to the knowledge of the Company, threatened with respect to any Taxes for which the Company is or might otherwise be liable and no taxing authority has given notice that it is conducting or intends to conduct an audit or examination with respect to any such Audit is threatened.
(e) An Audit of each United States federal income Tax Return Taxes. No issue has arisen in any examination of the Company by any taxing authority that, if raised with respect to the same or substantially similar facts arising in any other Tax period not so examined, would result in a deficiency for such other period, if upheld. The Company has not waived or extended any statute of limitations in respect of Taxes or Tax Returns or agreed to any extension of time with respect to a Tax assessment, reassessment, deficiency or with respect to the payment of any Taxes. The Company is not a party to any power of attorney with respect to a tax matter that is currently in force. The Company has not entered into any closing agreements with the IRS or any other taxing authority. The Company has delivered to Buyer true, complete and correct copies of its Subsidiaries has been completed by all examination reports or other similar reports and statements of deficiencies assessed against or agreed to by, or on behalf of, the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996Company since December 31, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid2005.
(f) There are no agreements, consents The Company has not requested or waivers to extend received any private letter ruling of the statutory period of limitations applicable to the assessment IRS or payment of comparable rulings or guidance issued by any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceother taxing authority.
(g) Neither None of the Company nor Assets (i) is tax-exempt use property within the meaning of Section 168(h) or Section 470(c)(2) of the Code, (ii) directly or indirectly secures any debt the interest on which is exempt under Section 103(a) of its Subsidiaries the Code or (iii) is a party to, or property that is bound by, required to be treated as being owned by any agreement, arrangement or policy relating Person (other than the Company) pursuant to the allocationprovisions of Section 168(f)(8) of the Internal Revenue Code of 1954, indemnification or sharing as amended, and in effect immediately before the enactment of Taxesthe Tax Reform Act of 1986.
(h) The Company, as the common parent Company has disclosed on its federal income Tax Return all positions taken therein that could give rise to a substantial understatement of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (federal income tax within the meaning of Section 1504(b) 6662 of the Code), . The Company has filed since 1994 not engaged in a consolidated return for United States federal income Tax purposes on behalf reportable transaction described in Section 1.6011-4 of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentTreasury Regulations.
(i) With No Liens for Taxes exist with respect to completed pay periodsany of the Assets, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawexcept for Permitted Liens.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect jurisdiction where the Company does not file a Tax Return has made a claim in writing that the Company is required to file a Tax Return or any of its Subsidiariesis subject to Tax in such jurisdiction.
(k) Neither The Company is not liable, nor does the Company nor have any Subsidiary shall become obligated in connection with the closing of the Merger potential liability, for the payment Taxes of another Person (i) under Treasury Regulation Section 1.1502-6 (or any amount described comparable provision of state, local or foreign law), (ii) as a transferee or successor, or (iii) by contract, indemnity or otherwise. The Company is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement.
(l) Except as set forth on Schedule 6.7(l), the Company does not have a permanent establishment in Section 162(m)(1) of any foreign country with which the CodeUnited States has a relevant Tax treaty, as defined in such relevant Tax treaty, nor does the Company otherwise operate or conduct business through any branch in any foreign country.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (ORBCOMM Inc.)
Taxes. Except as set forth in Section 3.16 on Schedule 4.16, as of the Company Disclosure Scheduledate hereof and to the Knowledge of the Shareholders and the Conveyed Entities:
(a) Each of the Company Conveyed Corporations is a small business corporation within the meaning of Section 1361 of the Code and has had in effect since the date set forth opposite its name on Schedule 4.16 a valid election to be treated as an "S" corporation for federal income tax purposes, and none of the Conveyed Corporations or the Shareholders has taken or caused or permitted to be taken any action that caused a termination of such S election for any period subsequent to such date.
(b) Each of the Conveyed Partnerships and each of the partnerships owned directly or indirectly by the Conveyed Partnerships has qualified since its formation as a partnership for federal income tax purposes under the Code.
(c) Each of the Conveyed Entities and their Subsidiaries has (i) duly and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) taxing authorities all material Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each all such Tax Return is Returns are true, correct and complete in all material respects respects, and (ii) duly timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (all Taxes shown as due on any such Tax Returns or there for which a written notice of assessment or demand for payment has been paid or such provision received from any taxing authority;
(d) Each of the Conveyed Entities and the Subsidiaries has been made on its behalf for its sole benefit and recourse) for complied in all material respects with all applicable Laws relating to the payment ofand withholding of Taxes (including withholding of Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any foreign Laws) and has, all Taxes for all periods ending on or prior within the time and within the manner prescribed by Law, withheld from employee wages and paid over to the date of this Agreement, except for those Taxes being contested in good faith.proper Governmental Authorities all amounts required to be withheld and paid over under all applicable Laws;
(be) There are no material Liens for Taxes upon any property the assets or assets properties of the Company or any Subsidiary thereof, Conveyed Entities and their Subsidiaries except for Liens statutory liens for Taxes not yet due due;
(f) There are no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns of the Conveyed Entities and for which adequate reserves their Subsidiaries that have been established in accordance with GAAP with full provision made for given by any of the payment thereof.Conveyed Entities;
(cg) Neither None of the Company nor any of its Conveyed Entities or their Subsidiaries has made any change in accounting methods, received a ruling from requested an extension of time within which to file any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.Return in respect of any fiscal year which has not since been filed;
(dh) No Audit (as hereinafter defined) by a Tax Authority is federal, state, local or foreign audits or other administrative proceedings have formally commenced or are presently pending with regard to any Taxes or Tax Returns of the Company Conveyed Entities or their Subsidiaries for which any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company Conveyed Entity or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996Subsidiary thereof would be liable, and no adjustments were asserted as a result of such Audits which have not written notification has been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or received by any of its Subsidiaries, and no power of attorney applicable to either the Company Conveyed Entities or any of its their Subsidiaries that such an audit or other proceeding is pending or threatened with respect to any Taxes is in force.due from any of the Conveyed Entities or their Subsidiaries or any Tax Return filed by any of the Conveyed Entities or their Subsidiaries;
(gi) Neither None of the Company Conveyed Entities or their Subsidiaries is required to include in income any adjustment pursuant to Section 481(a) of the Code by reason of a voluntary change in accounting method (nor has any taxing authority proposed in writing any such adjustment or change of its accounting method);
(j) None of the Conveyed Entities or their Subsidiaries is a party to, or is bound by, by or has any obligation under any Tax sharing agreement, arrangement Tax indemnification agreement or policy relating to the allocation, indemnification similar contract or sharing of Taxesarrangement.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(jk) No power of attorney is currently in force has been granted by or with respect to any of the Conveyed Entities or their Subsidiaries with respect to any matter relating to Taxes Taxes, which power of attorney is currently in force;
(l) None of the Conveyed Corporations or corporate Subsidiaries thereof is a party to any agreement, plan, contract or arrangement that could affect result, separately or in the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated aggregate, in connection with the closing of the Merger for the payment of any amount described in "excess parachute payments" within the meaning of Section 162(m)(1) 280G of the Code;
(m) No closing agreement pursuant to Section 7121 of the Code (or any predecessor provision) or any similar provision of any state, local or foreign Law has been entered into by or with respect to any of the Conveyed Entities or their Subsidiaries;
(n) The Conveyed Entities and their Subsidiaries have previously delivered or made available to Republic and the Republic Subsidiaries complete and accurate copies of each of the following items for the years ended December 31, 1993, December 31, 1994 and December 31, 1995: (i) all audit reports, letter rulings and technical advice memoranda relating to federal, state, local and foreign Taxes due from any of the Conveyed Entities or their Subsidiaries, (ii) federal, state, local and foreign Tax Returns filed by the Conveyed Entities or their Subsidiaries and (iii) any closing agreements entered into by any of the Conveyed Entities or their Subsidiaries with any taxing authority, in each case existing on the date hereof. The Conveyed Entities and their Subsidiaries will deliver to Republic and the Republic Subsidiaries all materials with respect to the foregoing for all matters arising after the date hereof; and
(o) Schedule 4.16 sets forth all taxable years of each Conveyed Entity and each Subsidiary that are open for purposes of the assessment of additional federal, state, local or foreign Income Taxes.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Republic Industries Inc), Agreement and Plan of Reorganization (Guy Salmon Usa LTD), Agreement and Plan of Reorganization (Republic Industries Inc)
Taxes. (a) Except as set forth in Section 3.16 3.14(a) of the Company Disclosure Schedule:
(a) Each Letter, each of the Company and its Subsidiaries has (i) duly subsidiaries, and any consolidated, combined, unitary or aggregate group for Tax purposes of which the Company or any of its subsidiaries is a member, have timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all United States federal income Tax Returns (as hereinafter defined) and all other Tax Returns required to be filed by it them or any of them (taking into account applicable extensions), and have timely paid and discharged all material Taxes required to be paid (whether or not shown on such Tax Returns), other than Taxes the payment of which is being contested in good faith by appropriate proceedings. The most recent financial statements contained in the Company SEC Reports reflect, with respect to any liability for Taxes of the Company and its subsidiaries for any years ended on or prior to before the date of this Agreementsuch Company SEC Reports and either not finally determined or with respect to which the applicable statute of limitations has not expired, an adequate reserve to satisfy any assessment for such Taxes for such years. All federal income Tax Returns and all other Tax Returns filed by each such of the Company and its subsidiaries with respect to Taxes are true and correct in all material respects. Copies of all federal, state and foreign income Tax Return is Returns for the three years preceding the Closing Date that are true, complete and correct and complete in all material respects and (ii) duly paid in full have been previously provided or made available to TCM. Neither the IRS nor any other taxing authority or agency is now asserting or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date Company's knowledge, threatening to assert against the Company or any of this Agreement, except its subsidiaries any deficiency or claim for those material additional Taxes being contested in good faith.
(b) which have not been paid. There are no Liens requests for Taxes upon information from the IRS or any property other taxing authority or agency currently outstanding. There are no pending audits of the Company or any of its subsidiaries by any taxing authority nor, to the Company's knowledge, are any proceedings (whether administrative or judicial) currently being conducted with respect to any issues relating to Taxes. No Tax claim has become a lien on any assets of the Company or any Subsidiary thereof, except of its subsidiaries. Neither the Company nor any of its subsidiaries is required to include in income (i) any material items in respect of any change in accounting methods or (ii) any gain with respect to installment sales.
(i) Neither the Company nor any of its subsidiaries has any liability for Liens any accumulated earnings tax or personal holding company tax; (ii) there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any Tax Return that relates to the Company or any of its subsidiaries that remain in effect; (iii) there are no Tax rulings or closing agreements relating to the Company or any of its subsidiaries that would affect its or any of their liability for Taxes not yet due for any period after the Effective Time; and (iv) neither the Company nor any of its subsidiaries has any liability for which adequate reserves have been established in accordance with GAAP with full provision made for Taxes of any person (other than the payment thereofCompany and its subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar state, local or foreign provision.
(c) Neither the Company nor any of its Subsidiaries has made subsidiaries is a party to any change in accounting methodsagreement (written or oral) providing for the allocation or sharing of, received a ruling from or indemnification from, Taxes with any Tax Authority party other than the Company and/or one or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectmore of its subsidiaries.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns Each of the Company or and its subsidiaries has withheld from each payment made to any of its Subsidiaries andpast or present employees, officers or directors, or any other person, the amount of all material Taxes and other deductions required to be withheld therefrom and paid the same to the knowledge of proper taxing authorities within the Companytime required by Law, no such Audit is threatenedincluding , without limitation, withholding Taxes on Options exercised prior to the Closing.
(e) An Audit of each The Company is not, nor was it any time during the five-year period ending on the date on which the Effective Time occurs, a "United States federal income Tax Return real property holding corporation" within the meaning of Section 897(c) of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidCode.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, subsidiaries has any excess loss accounts or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxesdeferred intercompany gain.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Bull Run Corp), Merger Agreement (Triple Crown Media, Inc.), Merger Agreement (Gray Television Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedulehas not had, and could not reasonably be expected to have, a material adverse affect on Duke:
(ai) Each of the Company Duke and its Subsidiaries subsidiaries has (i) duly filed (timely filed, or there have been has caused to be timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) , all Tax Returns (as hereinafter defined) required to be filed by it it, and all such Tax Returns are true, complete and accurate. All Taxes shown to be due and owing on or such Tax Returns have been timely paid.
(ii) The most recent financial statements contained in the Duke SEC Reports filed prior to the date of this AgreementAgreement reflect, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf GAAP, an adequate reserve for its sole benefit and recourse) for the payment of, all Taxes payable by Duke and its subsidiaries for all taxable periods ending on or prior to through the date of this Agreement, except for those Taxes being contested in good faithsuch financial statements.
(biii) There are is no Liens for Taxes upon any property audit, examination, deficiency, refund litigation, proposed adjustment or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established matter in accordance controversy with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard respect to any Taxes or Tax Returns Return of the Company Duke or any of its Subsidiaries andsubsidiaries, to the knowledge of the CompanyDuke, no such Audit is threatened.
(e) An Audit neither Duke nor any of each United States federal income Tax Return its subsidiaries has received written notice of the Company any claim made by a governmental authority in a jurisdiction where Duke or any of its Subsidiaries subsidiaries, as applicable, does not file a Tax Return, that Duke or such subsidiary is or may be subject to income taxation by that jurisdiction, no deficiency with respect to any Taxes has been completed proposed, asserted or assessed against Duke or any of its subsidiaries, and no requests for waivers of the time to assess any Taxes are pending.
(iv) The federal income Tax Returns of Duke and its subsidiaries have been examined by and settled with the applicable Tax Authorities IRS (or the applicable statutes of limitation for the assessment of Taxes for such periods have expiredlapsed) for all periods years through 1994. All material assessments for Taxes due with respect to such completed and including 1996, and no adjustments were asserted as a result of such Audits which settled examinations or any concluded litigation have not been finally resolved and fully paid.
(fv) There are no outstanding written agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company Duke or any of its Subsidiariessubsidiaries, and no power of attorney applicable to granted by either the Company Duke or any of its Subsidiaries subsidiaries with respect to any Taxes is currently in force.
(gvi) Neither the Company Duke nor any of its Subsidiaries subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to agreement providing for the allocation, indemnification allocation or sharing of Taxes.
Taxes imposed on or with respect to any individual or other Person (hother than (I) The Companysuch agreements with customers, as vendors, lessors or the common parent like entered into in the ordinary course of an affiliated group business, and (II) agreements with or among Duke or any of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Codeits subsidiaries), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company Duke nor any of such Subsidiaries its subsidiaries (A) has been a member of an affiliated group (or similar state, local or foreign filing group) filing a consolidated United States U.S. federal income Tax Return (other than the affiliated group in which they are currently members and the common parent of which is Duke) or (B) has any liability for the Company is the common parent.
Taxes of any person (i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company other than Duke or any of its Subsidiariessubsidiaries) (I) under Treasury Regulation ss. 1.1502-6 (or any similar provision of state, local or foreign law), or (II) as a transferee or successor.
(kvii) There are no material Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Duke and its subsidiaries.
(viii) Neither the Company Duke nor any Subsidiary shall become obligated in connection with of its subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent or impede either the closing Duke Reorganization from qualifying as a reorganization under Section 368(a) of the Code or the Cinergy Merger for the payment of any amount described in from qualifying as a reorganization under Section 162(m)(1368(a) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Duke Energy CORP), Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Taxes. Except as set forth in Section 3.16 of on Seller's Disclosure Schedule, the Company Disclosure Schedule:
(a) Each of the Company has timely filed, subject to appropriate extensions, and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date Closing will timely file all requisite returns relating to any Taxes, that, if unpaid, might result in a lien upon any of this Agreementthe Company's assets or a claim against Purchaser, as required and when due for all taxable periods in accordance with provisions of law pertaining thereto, and each such Tax Return tax return is correct or will be complete and complete accurate in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) respects. There are no Liens for Taxes upon any property claims or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently assessments pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor tax return for any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy alleged Tax deficiency relating to the allocation, indemnification Company's Business or sharing of Taxes.
(h) The the Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income no Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries issue has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force raised by any taxing authority or representative thereof with respect to any matter tax return relating to the Company's Business or the Company. Seller has furnished, or will furnish prior to the Closing, to Purchaser copies of all tax returns for each of the Company's three most recent tax years, to the extent such tax returns have been filed. Seller has not given or been requested to give waivers or extensions of any statute of limitations relating to the payment of Taxes that could affect for which the Company or any of its Subsidiaries.
(k) Neither may be liable. All Taxes due and payable by the Company nor any Subsidiary shall become obligated have been timely paid in full. The Company has withheld or collected all taxes required to have been withheld or collected and paid by the Company on its behalf in connection with amounts paid or owing to any employees or other Person, and such withheld Taxes have either been duly paid to the closing proper governmental authority or set aside in accounts for such purpose. No Seller has engaged any third party to render tax advice ("Tax Advisor") whereby Seller paid to such Tax Advisor a minimum of $250,000 and whereby such Tax Advisor has limited the ability of the Merger for Seller to disclose the payment of Tax Advisor's tax strategies. There are no tax allocation or tax sharing agreements between the Company, on the one hand, and the Seller and any amount described in Section 162(m)(1) affiliate of the CodeSeller, on the other hand.
Appears in 3 contracts
Sources: Acquisition Agreement (Sunset Brands Inc), Acquisition Agreement (Ibf Vi Guaranteed Income Fund), Acquisition Agreement (Sunset Brands Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All material Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to each Apple Blocker before the date of this Agreementhereof have been timely filed (taking into account all extensions), and each all such Tax Return is Returns are true, correct and complete in all material respects and respects, (ii) duly each Apple Blocker has timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (all material Taxes due or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior claimed to the date of this Agreementbe due, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith and for which adequate reserves have been established in accordance the financial statements of such Apple Blocker, (iii) all material Taxes required to be withheld by each Apple Blocker have been timely withheld and, to the extent required, paid over to the appropriate Governmental Entity and each Apple Blocker has complied with all information reporting and backup withholding requirements, including maintenance of required forms and other records, and (iv) the charges, accruals and reserves for Taxes with respect to each Apple Blocker reflected in such Apple Blocker’s balance sheet are adequate under GAAP with full provision made for to cover unpaid Tax liabilities accruing through the payment date thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(db) No Audit (as hereinafter defined) by a Tax Authority Apple Blocker is presently pending with regard party to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any material agreement, arrangement or policy relating to the principal purpose of which is the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries no Apple Blocker has been a member of an affiliated group (or similar state, local or foreign filing group) filing a material consolidated United States federal income Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentReturn.
(ic) With There is no outstanding material claim, assessment or deficiency against any Apple Blocker for any Taxes that has been asserted or threatened in writing by any Governmental Entity, and no written claim has been made, within the preceding three years, by a Governmental Entity in a jurisdiction where such Apple Blocker does not file Tax Returns or pay Taxes that it is obligated to file Tax Returns or pay Taxes in such jurisdiction. No waiver or extension of any statute of limitations with respect to completed pay periods, the Company and each assessment or collection of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts Taxes is in all material respects with all Tax withholding provisions of applicable laweffect for any Apple Blocker.
(jd) No power During the period beginning two years before the date hereof, no Apple Blocker has been a distributing corporation or a controlled corporation for purposes of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) 355 of the Code.
Appears in 3 contracts
Sources: Support Agreement, Support Agreement (SAILFISH ENERGY HOLDINGS Corp), Support Agreement (Stone Energy Corp)
Taxes. Except as set forth would not reasonably be expected to have, individually or in Section 3.16 of the Company Disclosure Scheduleaggregate, a Material Adverse Effect on Elf:
(a) Each Elf and each of the Company and its Subsidiaries has (i) duly timely filed (or there have been has had timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) or will timely file or cause to be timely filed all Tax Returns (as hereinafter defined) required by applicable Law to be filed by it or on or its behalf prior to or as of the date of this AgreementEffective Time, and each all such Tax Return is correct Returns are, or will be at the time of filing, true and complete in all material respects respects.
(b) Elf and each of its Subsidiaries has timely paid (ii) duly or has had timely paid in full on its behalf), or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision where payment is not yet due, has established (or there has been paid or such provision has been made had established on its behalf and for its sole benefit and recourse) or (with respect to new Taxes for periods, or portions thereof, beginning after the date hereof) will establish or cause to be established in accordance with GAAP on or before the Effective Time, an adequate accrual for the payment of, all Taxes for all periods due with respect to any period ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets as of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofEffective Time.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States The federal income Tax Return of the Company or any of Returns filed with respect to Elf and its Subsidiaries has have been completed by examined and settled with the applicable Tax Authorities Internal Revenue Service (the "IRS") (or the applicable statutes of limitation for the assessment of federal income Taxes for such periods have expired) for all periods years through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid1990.
(fd) There are no agreements, consents Liens or waivers to extend the statutory period of limitations applicable to the assessment or payment of any encumbrances for Taxes or deficiencies against the Company or on any of its Subsidiaries, and no power the assets of attorney applicable to either the Company Elf or any of its Subsidiaries with respect to any other than those for Taxes is in force.
(g) not yet due and payable. Neither the Company Elf nor any of its Subsidiaries is a party toto any Tax sharing or indemnification agreement (other than such agreements solely between or among Elf and its Subsidiaries).
(e) Elf and its Subsidiaries have complied with all applicable Laws, or is bound by, any agreement, arrangement or policy rules and regulations relating to the allocation, indemnification or sharing payment and withholding of Taxes.
(hf) The CompanyNo federal, as the common parent state, local or foreign audits or administrative proceedings are pending with regard to any Taxes or Tax Return of an affiliated group Elf or its Subsidiaries and none of corporations them has received a written notice of any proposed audit or proceeding regarding any pending audit or proceeding.
(as defined in Section 1504 g) Neither Elf nor any of the Code) consisting solely of the Company and the its Subsidiaries that are has constituted either a "includable corporationsdistributing corporation" (or a "controlled corporation" within the meaning of Section 1504(b355(a)(1)(A) of the Code), has filed since 1994 Code in a consolidated return distribution of stock intended to qualify for United States federal income Tax purposes on behalf tax-free treatment under Section 355 of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than Code (A) in the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid two years prior to the appropriate Tax Authority, proper amounts date of this Agreement (or will constitute such a corporation in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect the two years prior to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing date of the Merger for Effective Time of the payment Merger) or (B) in a distribution which otherwise constitutes part of any amount described in a "plan" or "series of related transactions" within the meaning of Section 162(m)(1355(e) of the CodeCode in conjunction with the Merger.
Appears in 3 contracts
Sources: Merger Agreement (Flowers Industries Inc /Ga), Merger Agreement (Keebler Foods Co), Merger Agreement (Kellogg Co)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and its Subsidiaries has each Company Subsidiary have (i) duly and timely filed (or there have been duly and timely filed on its behalf) with the appropriate Tax Governmental Entities or Taxing Authorities (as hereinafter defined) all income Tax Returns (as hereinafter defined) and all other material Tax Returns required to be filed by it, and all notifications required to be filed by it on or prior to in respect of the date of this AgreementCompany Stock Plans, which Tax Returns and each such Tax Return is notifications were true, correct and complete in all material respects, (ii) duly and timely paid in full or withheld, or established adequate reserves in accordance with GAAP for, all material Taxes that are due and payable by it (including estimated Tax payments), whether or not such Taxes were shown on any Tax Return or asserted by the relevant Governmental Entity or Taxing Authority, (iii) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each Company Subsidiary through the date of this Agreement and (iv) complied in all material respects with all Laws applicable to the withholding and payment over of material Taxes and has timely withheld and paid over to, or, where amounts have not been so withheld, established an adequate reserve under GAAP for the payment to, the respective proper Governmental Entities or Taxing Authorities all material amounts required to be so withheld and paid over.
(b) There (i) is no material deficiency, Proceeding or request for information now pending, outstanding or threatened against or with respect to the Company or any Company Subsidiary in respect of any Taxes or Tax Returns and (ii) duly paid are no material requests for rulings or determinations in full respect of any Taxes or Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such Taxes or Tax Returns.
(c) No deficiency for any Tax has been asserted or assessed by any Governmental Entity or Taxing Authority in writing against the Company or any Company Subsidiary (or, made to the knowledge of the Company or any Company Subsidiary, has been threatened or proposed), except for deficiencies which have been satisfied by payment, settled or been withdrawn or which are being diligently contested in good faith by appropriate Proceedings and for which adequate accruals and reserves in its books and records have been established in accordance with GAAP GAAP.
(d) There are no Tax sharing agreements, Tax indemnity agreements or other similar agreements with full provision respect to or involving the Company or any Company Subsidiary.
(e) None of the Company or any Company Subsidiary has any liability for material Taxes as a result of having been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar affiliated or consolidated group for Tax purposes under state, local or foreign Law (other than a group the common parent of which is the Company), or has any liability for the Taxes of any Person (other than the Company or the Company Subsidiaries) under Treasury Regulations Section 1.1502-6 (or there has been paid any similar provision of state, local or such foreign Law), or as a transferee or successor, by Contract (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax) or otherwise.
(f) There are no material adjustments under Section 481 of the Code (or similar or analogous provision has been made on its behalf for its sole benefit and recourseof state, local or foreign Law) for income Tax purposes applicable to or required to be made by the payment ofCompany or any Company Subsidiary as a result of changes in methods of accounting or other events occurring on or before the date hereof.
(g) None of the Company or any Company Subsidiary will be required to include any material item of income in, all Taxes or exclude any material item of deduction from, taxable income for all periods any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the date Closing Date, (ii) “closing agreement” as described in Section 7121 of this Agreementthe Code (or any corresponding or similar provision of state, except for those Taxes being contested local or foreign Tax Law) executed on or prior to the Closing Date, (iii) intercompany transactions or excess loss account described in good faithTreasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) prepaid amount received on or prior to the Closing Date, (vi) cancellation or indebtedness income deferred pursuant to Section 108(i) of the Code, (vii) any inclusion under Section 951(a) or Section 951A of the Code attributable to (A) “subpart F income,” within the meaning of Section 952 of the Code, (B) direct or indirect holding of “United States property,” within the meaning of Section 956 of the Code, (C) “global intangible low-taxed income” as defined in Section 951A of the Code, in each case, determined as if the relevant taxable years ended on the Closing Date or (D) any inclusion under Section 965 of the Code, determined without regard to any election pursuant to Section 965(h) of the Code or (viii) otherwise as a result of a transaction or accounting method that accelerated an item of deduction into periods ending on or before the Closing Date or a transaction or accounting method that deferred an item of income into periods beginning after the Closing Date.
(bh) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereofCompany Subsidiary, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofPermitted Liens.
(ci) Neither the Company nor any of its Subsidiaries Company Subsidiary has made any change participated in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (“reportable transaction” within the meaning of Treasury Regulations Section 1504(b) of the Code1.6011-4(b), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently material claim, other than claims defeated or withdrawn, has ever been made by an authority in force with respect to any matter relating to Taxes that could affect a jurisdiction where the Company or any of its SubsidiariesCompany Subsidiary has not filed Tax Returns that it is or may be subject to taxation by that jurisdiction.
(k) Neither the Company nor any Company Subsidiary shall become obligated has waived any statute of limitations in connection respect of Taxes or agreed to any extension of time with regard to a Tax assessment or deficiency (other than pursuant to extensions of time to file Tax Returns obtained in the closing ordinary course).
(l) None of the Merger for Company or any Company Subsidiary has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the payment two-year period ending on the date hereof that was purported or intended to be governed by Section 355 of the Code (or any amount described in similar provision of state, local or foreign Law).
(m) The Company is not a foreign person within the meaning of Treasury Regulations Section 162(m)(11.1445-2. The Company is not, and has not been at any time within the last five years, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(n) There is no power of attorney given by or binding upon the Company or any Company Subsidiary with respect to Taxes for any period for which the statute of limitations (including any waivers or extensions) has not yet expired.
(o) None of the Indebtedness of the Company or any Company Subsidiary constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code.
(p) None of the Company or any Company Subsidiary has taken or failed to take any action, or has knowledge of any facts or circumstances, that would prevent the Merger from constituting a Tax-free reorganization described in Section 368(a) and related provisions of the Code.
(q) No capital contributions have been made to the Company or any Company Subsidiary (either directly or indirectly) at any time as part of a plan a principal purpose of which was to increase any limitation relating to any such entity under Section 382 of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.), Merger Agreement (Lantheus Holdings, Inc.)
Taxes. (a) Except as set forth in Section 3.16 3.12 of the Company Disclosure Schedule:
(a) Each of , the Company and each of its Subsidiaries has (i) duly timely filed (or there have been has had timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date Company and each of this Agreementits Subsidiaries, and each such Tax Return is correct Returns are true, correct, and complete in all material respects respects.
(b) The Company and (ii) duly paid in full oreach of its Subsidiaries has paid, made or where payment is not yet due, has established an adequate accruals and reserves in its books and records accrual in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to through the date of this Agreement, except for those Taxes being contested in good faithhereof.
(bc) There are no Liens liens for Taxes upon any property or assets of the Company or any Subsidiary thereofof its Subsidiaries, except for Liens liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse EffectGAAP.
(d) No Audit (as hereinafter defined) by a Tax Authority is federal, state, local or foreign Audits are presently pending with regard to any Taxes or Tax Returns of the Company or any of and its Subsidiaries and, and to the knowledge of the Company, no such Audit is threatened.
(e) An Audit Except as set forth in Section 3.12(e) of each United States federal income the Disclosure Schedule, the Tax Return Returns of the Company or any and each of its Subsidiaries has have not been completed examined by the applicable Tax Authorities Authority (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996), and for any year that a Tax Return was examined, no material adjustments were asserted as a result of such Audits examination which have not been finally resolved and fully paid, and no issue has been raised by any Tax Authority in any Audit of the Company or any of its Subsidiaries that, if raised with respect to any other period not so audited, could be expected to result in a proposed deficiency for any such period not so audited.
(f) There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either granted by the Company or any of its Subsidiaries with respect to any Taxes is currently in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to agreement providing for the allocation, indemnification indemnification, or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither Neither the Company nor any of such its Subsidiaries has been a member of an any "affiliated group filing a consolidated United States federal Tax Return other than group" (as defined in section 1504(a) of the affiliated group in which they are currently members Code) and of which the Company is the common parentnot subject to Treas. Reg. 1.1502-6 for any period.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated of its Subsidiaries is or has been a U.S. real property holding company (as defined in connection with the closing Section 897(c)(2) of the Merger for Code) during the payment of any amount described applicable period specified in Section 162(m)(1897(c)(1)(A)(ii) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Worldtalk Communications Corp), Merger Agreement (Tumbleweed Communications Corp), Merger Agreement (Tumbleweed Communications Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) that are required to be filed or delivered (taking into account any extensions of time within which to file or deliver) by or with respect to it on and its Subsidiaries have been duly and timely filed or prior to the date of this Agreementdelivered, and each all such Tax Return is correct Returns are complete and complete accurate in all material respects and respects.
(ii) duly All Taxes due have been timely paid in full or(whether or not shown to be due on the Tax Returns referred to in clause (i)).
(iii) All Taxes that it or any of its Subsidiaries is obligated to withhold from amounts owing to any employee, creditor or third party have been paid over to the proper Governmental Entity in a timely manner, to the extent due and payable.
(iv) No extensions or waivers of statutes of limitations for the assessment of Taxes have been given by or requested in writing with respect to any of its U.S. federal, state, local or foreign income Taxes or those of its Subsidiaries.
(v) None of the Tax Returns referred to in clause (i) is currently under any audit, suit, proceeding, examination or assessment by the IRS or the relevant state, local or foreign taxing authority and neither it nor its Subsidiaries has received written notice from any taxing authority that an audit, suit, proceeding, examination or assessment in respect of such Tax Returns is pending or threatened.
(vi) No deficiencies have been asserted or assessments made adequate accruals and reserves against it or its Subsidiaries by the relevant taxing authorities as a result of any audit or examination of any of the Tax Returns referred to in clause (i).
(vii) No claim has been made in writing against it or its books and records Subsidiaries by any taxing authorities in a jurisdiction where it or its Subsidiaries does not file Tax Returns that it or its Subsidiaries is or may be subject to taxation by that jurisdiction.
(viii) It has made provision in accordance with GAAP with full provision (or there has been paid or such provision has been made on GAAP, in the financial statements included in its behalf SEC Filings filed before the date hereof, for its sole benefit and recourse) for the payment of, all Taxes for all periods ending that accrued on or prior to before the end of the most recent period covered by its SEC Filings filed before the date of this Agreement, except for those Taxes being contested in good faithhereof.
(bix) Neither it nor any of its Subsidiaries is a party to or is otherwise bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement (i) exclusively between or among it and its wholly owned Subsidiaries or (ii) the primary purpose of which is not the allocation or payment of Tax liability that was entered into in the ordinary course of business consistent with past practice).
(x) Within the past two years, neither it nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(xi) Neither it nor any of its Subsidiaries has participated in or been a party to a transaction that constitutes a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations.
(xii) Neither it nor any of its Subsidiaries has taken any action or knows of any fact that would reasonably be expected to prevent the Merger from qualification as a reorganization with the meaning of Section 368(a) of the Code.
(xiii) There are no Liens for Taxes upon any its property or and assets of the Company or any Subsidiary thereof, of its Subsidiaries’ property and assets except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofowing.
(cxiv) Neither the Company it nor any of its Subsidiaries has made will be required for Tax purposes to include any change in accounting methodsitem of income in, received a ruling from or exclude any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to item of deduction from, taxable income for any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities taxable period (or portion thereof) ending on or after the applicable statutes of limitation for Closing Date, taking into account the assessment of Taxes for such periods have expired) for all periods through and including 1996Merger, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each any change in method of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid accounting for a taxable period ending on or prior to the appropriate Tax AuthorityClosing Date, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(jii) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the “closing of the Merger for the payment of any amount agreement” as described in Section 162(m)(17121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) any installment sale or open transaction made or entered into on or prior to the Closing Date, (iv) any prepaid amount received on or prior to the Closing Date or (v) any election under 108(i) of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (CAESARS ENTERTAINMENT Corp), Agreement and Plan of Merger (Caesars Acquisition Co), Merger Agreement (CAESARS ENTERTAINMENT Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Seller and its Subsidiaries has (i) duly TOPIII have filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) that are required to be filed by it on or prior with respect to any Tax relating to the date of this AgreementAssets, and each Seller and TOPIII have paid all Taxes that have become due as indicated thereon, except where such Tax Return is being contested in good faith by appropriate proceedings, or where the failure to so file or pay would not reasonably be expected to create a Material Adverse Effect. Seller and TOPIII have complied in all material respects with all applicable laws, rules and regulations relating to withholding Taxes relating to Seller’s Employees. All Tax Returns relating to the Assets are true, correct and complete in all material respects and (ii) duly paid respects. Except as set forth in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (Schedule 3.21 “Tax Matters,” no notice of deficiency or there assessment has been received from any taxing authority with respect to liabilities for Taxes of Seller and TOPIII in respect of the Assets, which have not been fully paid or finally settled, and any such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes deficiency shown in Schedule 3.21 “Tax Matters” is being contested in good faith.
(b) There faith through appropriate proceedings. Except as set forth in Schedule 3.21 “Tax Matters,” there are no Liens for Taxes upon any property outstanding agreements or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by waivers extending the applicable Tax Authorities (or the applicable statutes statutory periods of limitation for Taxes associated with the assessment Assets that will be binding upon Purchaser after the Closing Date. None of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted the Assets is property that is required to be treated as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable being owned by any other person pursuant to the assessment or payment so-called safe harbor lease provisions of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(gformer Section 168(f) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely , and none of the Company and the Subsidiaries that are "includable corporations" (Assets is “tax-exempt use” property within the meaning of Section 1504(b168(h) of the Code), has filed since 1994 a consolidated return for United States federal income . Schedule 3.21 “Tax purposes on behalf of itself and such Subsidiaries and neither Matters” sets forth the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group taxing jurisdictions in which they are currently members Seller and TOPIII own assets or conducts business that require a notification to a taxing authority of which the Company is transactions contemplated by this Agreement, if the common parent.
(i) With respect failure to completed pay periods, make such notification or obtain Tax clearance certificates in connection therewith would either require Purchaser to withhold any portion of the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect Purchase Price or subject Purchaser to any matter relating to liability for any Taxes that could affect the Company of Seller or any of its SubsidiariesTOPIII.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company SCG Subsidiary has duly and its Subsidiaries has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) governmental authorities all Tax Returns (as hereinafter defined) required to be filed by it on (either separately or prior to as a member of any affiliated group within the date meaning of this AgreementSection 1504 of the Code or any similar group defined under a similar provision of state, and each such Tax Return is correct and complete in all material respects and local or foreign law (iian "Affiliated Group")) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this AgreementMerger Closing, except to the extent of any Tax Returns for those which an extension of time for filing has been properly filed. Each such return and filing is true and correct in all respects. All Taxes being contested owed by either SCG Subsidiary have been paid (whether or not shown on a Tax Return). No material issues have been raised in good faithany examination by any taxing authority with respect to the businesses and operations of SCG or either of the SCG Subsidiaries which (i) reasonably could be expected to result in an adjustment to the liability for Taxes for such period examined or (ii), by application of similar principles, reasonably could be expected to result in an adjustment to the liability for Taxes for any other period not so examined. All Taxes which each SCG Subsidiary is required by law to withhold or collect, including without limitation Taxes required to have been withheld in connection with amounts paid or owning to any employee, independent contractor, creditor, stockholder, or other third party and sales, gross receipts and use taxes, have been duly withheld or collected and, to the extent required, have been paid over to the proper governmental authorities or are held in separate bank accounts for such purpose. There are no liens for Taxes upon the assets of SCG or either of the SCG Subsidiaries except for statutory liens for Taxes not yet due.
(b) There are None of SCG, the SCG Subsidiaries or the Affiliated Group has filed for an extension of a statute of limitations with respect to any Tax and no Liens for Taxes upon any property or assets governmental authorities have requested an extension of the Company statute of limitations with respect to any Tax. The Tax Returns of SCG, each SCG Subsidiary and the Affiliated Group are not being and have not been examined by any taxing authority for any past year or periods. None of SCG, the SCG Subsidiaries or the Affiliated Group is a party to any pending action or any formal or informal proceeding by any taxing authority for a deficiency, assessment or collection of Taxes, and no claim for any deficiency, assessment or collection of Taxes has been asserted, or, to the best knowledge of SCG, threatened against it, including claims by any taxing authority in a jurisdiction where SCG and the SCG Subsidiaries do not file tax returns that any of them is or may be subject to taxation in that jurisdiction.
(c) Each SCG Subsidiary thereofhas properly accrued on its respective Subsidiary Financial Statements all Taxes due for which such SCG Subsidiary may be liable in its own right (including, except without limitation, by reason of being a member of an Affiliated Group or as a transferee of the assets of, or successor to, any corporation, person, association, partnership, joint venture or other entity. Each SCG Subsidiary has established (and until the Closing shall continue to establish and maintain) on its books and records reserves that are adequate for Liens for the payment of all Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofpayable.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Security Capital Pacific Trust), Merger Agreement (Security Capital Industrial Trust), Merger Agreement (Security Capital Atlantic Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Scheduleon Schedule 5.5:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All income Tax Returns (as hereinafter defined) and, to such Seller’s Knowledge, other material Tax Returns required to be filed by it on or prior to the date of this AgreementAcquired Companies have been timely filed (taking into account any valid extensions for filing). To such Seller’s Knowledge, and each such Tax Return is true, correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithrespects.
(b) To such Seller’s Knowledge, each Acquired Company has fully and timely paid all material Taxes that have become due and payable by or with respect to such Acquired Company whether or not shown on any Tax Return.
(c) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for (other than statutory Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for payable) on the payment thereof.
(c) Neither the Company nor Acquired Interests or, to such Seller’s Knowledge, any of its Subsidiaries has made the Assets, in either case, that arose in connection with any change in accounting methodsfailure (or alleged failure) to pay any material Tax. To such Seller’s Knowledge, received a ruling from no Acquired Company is currently the beneficiary of any extension of time within which to file any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse EffectReturn.
(d) No Audit (as hereinafter defined) To such Seller’s Knowledge, no claim has been made by a Governmental Authority in a jurisdiction where an Acquired Company does not file a particular Tax Authority Return or pay a particular Tax that the Acquired Company is presently pending with regard or may be required to any Taxes file such Tax Return or be subject to such Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Companyby that jurisdiction. To such Seller’s Knowledge, no such Audit is threatenedissues relating to Taxes of any Acquired Company were raised in any completed audit or examination that would reasonably be expected to result in a material amount of Taxes in a later taxable period.
(e) An Audit of each United States federal income Tax Return of To such Seller’s Knowledge, the Company Acquired Companies have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any of its Subsidiaries has been completed by the applicable Tax Authorities (employee, independent contractor, creditor, equityholder or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidother Person.
(f) There are To such Seller’s Knowledge, no agreementsmaterial Tax audit, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes administrative or deficiencies against the Company or any of its Subsidiariesjudicial proceeding is being conducted, and no power of attorney applicable pending or, to either the Company or any of its Subsidiaries such Seller’s Knowledge, threatened in writing with respect to any Acquired Company. To such Seller’s Knowledge, no material deficiencies for Taxes is in forcewith respect to any Acquired Company have been claimed, proposed or assessed by any Governmental Authority.
(g) Neither the To such Seller’s Knowledge, no Acquired Company has waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, nor has any of its Subsidiaries is a party to, request been made in writing for any such extension or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxeswaiver.
(h) The CompanyTo such Seller’s Knowledge, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the no Acquired Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has ever been a member of an affiliated group filing a consolidated United States federal income Tax Return or any similar group for federal, state, local or foreign Tax purposes. To such Seller’s Knowledge, no Acquired Company has any liability for the Taxes of any Person (other than the affiliated group in which they are currently members and Taxes of which the Company is the common parentan Acquired Company) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee or successor, (iii) by Contract or (iv) otherwise.
(i) With respect to completed pay periodsFor U.S. federal and applicable state income tax purposes, the Companies are currently classified as partnerships, and, to such Seller’s Knowledge, have been at all times since their formation classified as either a disregarded entity or a partnership. To such Seller’s Knowledge, each other Acquired Company and each of has at all times since its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawformation been classified as a disregarded entity for U.S. federal income tax purposes.
(j) No power of attorney is currently in force with respect To such Seller’s Knowledge, no Acquired Company is, or has been, a party to or bound by any matter relating to Taxes that could affect the Company Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or any of its Subsidiariessimilar Contract.
(k) Neither To such Seller’s Knowledge, no Acquired Company has been a party to a transaction that is or is substantially similar to a “listed transaction,” as such term is defined in Treasury Regulations Section 1.6011-4(b)(2), or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(l) To such Seller’s Knowledge, no Acquired Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) ending after the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment Closing Date as a result of any amount (i) closing agreements described in Section 162(m)(17121 of the Code, (ii) installment sale or other transaction on or prior to the Closing Date, (iii) any accounting method change or agreement filed or made on or prior to the Closing, (iv) any prepaid amount received on or prior to the Closing, or (v) any election under Section 108(i) of the Code. Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 5.5 are the sole and exclusive representations and warranties of such Seller in this Agreement with respect to Tax matters.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Plains All American Pipeline Lp), Purchase and Sale Agreement (Plains Gp Holdings Lp), Purchase and Sale Agreement (Kinetik Holdings Inc.)
Taxes. (a) Except as may be specified in Section 5.8(a) of the Parent Disclosure Schedule, (i) each of the Parent and its Subsidiaries has duly and timely filed all Tax Returns required to have been filed by or with respect to the Parent or such Subsidiary, (ii) each such Tax Return correctly and completely reflects all liability for Taxes and all other information required to be reported thereon, (iii) all Taxes owed by the Parent and each Subsidiary of the Parent (whether or not shown on any Tax Return) have been timely paid, and (iv) each of the Parent and its Subsidiaries has adequately provided for, in its books of account and related records, all Liability for unpaid Taxes, being current Taxes not yet due and payable.
(b) Except as may be specified in Section 5.8(b) of the Parent Disclosure Schedule, each of the Parent and its Subsidiaries has withheld and timely paid all Taxes required to have been withheld and paid by it and has complied with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto.
(c) Except as may be specified in Section 5.8(c) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries (i) is the beneficiary of any extension of time within which to file any Tax Return, nor has Parent or any of its Subsidiaries made (or had made on its behalf) any requests for such extensions, or (ii) has waived (or is subject to a waiver of) any statute of limitations in respect of Taxes or has agreed to (or is subject to) any extension of time with respect to a Tax assessment or deficiency.
(d) Section 5.8(d) of the Parent Disclosure Schedule indicates those Tax Returns that have been audited and those Tax Returns that currently are the subject of audit. Except as set forth in Section 3.16 5.8(d) of the Company Parent Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has Schedule (i) duly filed there is no Action now pending or threatened against or with respect to the Parent or any of its Subsidiaries in respect of any Tax or any assessment or deficiency, and (or ii) there have been filed on its behalfare no liens for Taxes (other than current Taxes not yet due and payable) with upon the appropriate Tax Authorities assets of the Parent.
(e) Section 5.8(e) of the Parent Disclosure Schedule lists, as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to of the date of this Agreement, and each such Tax Return is correct and complete all jurisdictions in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for which the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Parent or any of its Subsidiaries and, to currently files Tax Returns. No claim has been made by any Taxing Authority in a jurisdiction where the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company Parent or any of its Subsidiaries has been completed does not file Tax Returns that any of them is or may be subject to taxation by the applicable that jurisdiction or that any of them must file Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidReturns.
(f) There are no agreements, consents None of the assets or waivers to extend properties of the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company Parent or any of its Subsidiaries with respect to any Taxes is in force.
(g) constitutes tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code. Neither the Company Parent nor any of its Subsidiaries is a party toto any “safe harbor lease” within the meaning of Section 168(f)(8) of the Code, as in effect prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982, or to any “long-term contract” within the meaning of Section 460 of the Code. Neither the Parent nor any of its Subsidiaries has ever been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code. Parent is bound by, any agreement, arrangement or policy relating to not a “foreign person” within the allocation, indemnification or sharing meaning of TaxesSection 1445 of the Code.
(hg) The CompanyNeither the Parent nor any of its Subsidiaries has agreed to or is required to make by reason of a change in accounting method or otherwise, as the common parent or could be required to make by reason of an affiliated group of corporations (as defined a proposed or threatened change in accounting method or otherwise, any adjustment under Section 1504 481(a) of the Code) consisting solely . Neither the Parent nor any of its Subsidiaries has been the Company and the Subsidiaries that are "includable corporations" “distributing corporation” (within the meaning of Section 1504(b355(c)(2) of the Code)) with respect to a transaction described in Section 355 of the Code within the 5-year period ending as of the date of this Agreement.
(h) No Subsidiary of the Parent that is incorporated in a non-U.S. jurisdiction has, or at any time has filed since 1994 a consolidated return for had, an investment in “United States federal income Tax purposes on behalf property” within the meaning of itself and such Subsidiaries Section 956(c) of the Code. No Subsidiary of the Parent is, or at any time has been, a passive foreign investment company within the meaning of Section 1297 of the Code and neither the Company Parent nor any of such its Subsidiaries is a shareholder, directly or indirectly, in a passive foreign investment company. No Subsidiary of the Parent that is incorporated in a non-U.S. jurisdiction is, or at any time has been, engaged in the conduct of a trade or business within the United States, or treated as or considered to be so engaged.
(i) Neither the Parent nor any of its Subsidiaries (i) has ever been a party to any Tax allocation or sharing agreement or Tax indemnification agreement, (ii) has ever been a member of an affiliated group filing a consolidated United States federal affiliated, consolidated, condensed or unitary group, or (iii) has any Liability for or obligation to pay Taxes of any other Person under Treas. Reg. 1.1502-6 (or any similar provision of Tax Return other than Law), or as transferee or successor, by Contract or otherwise. Neither the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each Parent nor any of its Subsidiaries has withheld from its employeesis a party to any joint venture, independent contractorspartnership, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawor other arrangement that is treated as a partnership for federal income tax purposes.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect Neither the Company or Parent nor any of its SubsidiariesSubsidiaries 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 Effective Time as a result of any: (i) intercompany transactions or excess loss accounts described in Treasury regulations under Section 1502 of the Code (or any similar provision of state, local, or foreign Tax Law), (ii) installment sale or open transaction disposition made on or prior to the Effective Time, or (iii) prepaid amount received on or prior to the Effective Time.
(k) The Parent has not entered into any transaction that constitutes a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
(l) Section 5.8(l) of the Parent Disclosure Schedule lists each person who the Parent reasonably believes is, with respect to the Parent or any Affiliate of the Parent, a “disqualified individual” within the meaning of Section 280G of the Code and the Regulations thereunder.
(m) Neither the Company nor Parent nor, to the Knowledge of Parent, any Subsidiary shall become obligated in connection with of its Affiliates has taken or agreed to take any action (other than actions contemplated by this Agreement) that would reasonably be expected to prevent the closing Merger from constituting a “reorganization” under Section 368 of the Merger for the payment Code. The Parent is not aware of any amount described in agreement or plan to which the Parent or any of its Affiliates is a party or other circumstances relating to the Parent or any of its Affiliates that could reasonably be expected to prevent the Merger from so qualifying as a “reorganization” under Section 162(m)(1) 368 of the Code.
(n) Except as may be specified in Section 5.8(n) of the Parent Disclosure Schedule, the unpaid Taxes of the Parent (i) did not, as of the date of the Most Recent Parent Balance Sheet, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Parent 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 Parent in filing its Tax Returns. Since the date of the Most Recent Parent Balance Sheet, the Parent has not 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.
Appears in 3 contracts
Sources: Merger Agreement (Gca I Acquisition Corp), Merger Agreement (Gca Ii Acquisition Corp), Merger Agreement (Gca I Acquisition Corp)
Taxes. (a) Except for such matters as set forth in Section 3.16 of would not have a material adverse effect on the Company Disclosure ScheduleCompany:
(ai) Each each of the Company and its Subsidiaries subsidiaries has (i) duly timely filed (or there have been has had timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) ), all Federal income and all other material Tax Returns (as hereinafter defined) required by applicable law to be filed by it on or prior to or as of the date of this Agreementhereof, and each all such Tax Return is correct Returns are true, accurate and complete in all material respects and respects.
(ii) duly each of the Company and its subsidiaries has paid in full (or has had paid on its behalf) or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision where payment is not yet due, has established (or there has been paid or such provision has been made had established on its behalf and for its sole benefit and recourse) in accordance with GAAP on or before the date hereof an adequate accrual for the payment of, all material Taxes for all periods due with respect to any monthly accounting period ending on or prior to or as of the date hereof. No material deficiency with respect to Taxes has been proposed in writing or assessed against the Company or any of this Agreementits subsidiaries. No material liens for Taxes exist with respect to any asset of the Company or any of its subsidiaries, except for those statutory liens for Taxes being contested not yet due.
(iii) the Federal income Tax Returns and material state income and franchise and foreign Tax Returns of the Company and each of its subsidiaries have been examined by and settled with the appropriate Taxing Authority or the applicable statute of limitations has expired for all years through 1994. All material assessments for Taxes due with respect to such completed and settled examinations or any concluded litigation have been fully paid.
(iv) except for customary indemnities included within leases, neither the Company nor any of its subsidiaries has any obligation under any agreement (either with any person or any taxing authority) with respect to Taxes.
(v) no claim has been made by a Taxing Authority in good faitha jurisdiction where neither the Company nor any of its subsidiaries files Tax Returns that the Company or any of its subsidiaries is or may be subject to income or franchise taxation in that jurisdiction.
(vi) no issue has been raised in writing by any Taxing Authority in any presently pending tax audit that could have a material adverse effect on the Company for any period after the Effective Time.
(vii) neither the Company nor any of its subsidiaries is a party to any contract, agreement or other arrangement which provides for the payment of any amount which would not be deductible by reason of Section 162(m) or Section 280G of the Code.
(b) There are no Liens for Taxes upon Within the past ten years, neither the Company nor any property of its subsidiaries has constituted either a "distributing corporation" or assets a "controlled corporation"(within the meaning of Section 355(a)(1)(A) of the Company or any Subsidiary thereof, except Code) in a distribution of stock qualifying for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for tax-free treatment under Section 355 of the payment thereofCode.
(c) Neither the Company nor within the past six years, any of its Subsidiaries current subsidiaries has made been a member of an affiliated, consolidated, combined or unitary group of corporations, other than any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a such group of which the Company Material Adverse Effecthas been the common parent.
(d) No Audit The Company has made available to Parent true and complete copies of (as hereinafter definedA) by a all Federal and material state and foreign income and franchise Tax Authority is presently pending Returns of the Company and its subsidiaries for the preceding three Taxable years ending in 1997 and (B) any audit report issued within the last three years (or otherwise with regard respect to any audit or proceeding in progress) relating to material Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedsubsidiaries.
(e) An Audit of each United States federal income Tax Return No subsidiary of the Company or owns any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidShares.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Whittaker Corp), Agreement and Plan of Merger (Whittaker Corp), Merger Agreement (Meggit PLC)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All material Tax Returns (as hereinafter defined) required by Law to be filed by it on or prior Acquiror, if any, have been duly and timely filed (after giving effect to the date any valid extensions of this Agreement, and each time in which to make such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithfilings).
(b) There are no Liens for All material amounts of Taxes upon shown due on any property or assets Tax Returns of the Company or any Subsidiary thereof, except for Liens for Acquiror and all other material amounts of Taxes not yet due and for which adequate reserves owed by Acquiror have been established in accordance with GAAP with full provision made for the payment thereoftimely paid.
(c) Neither Except where the Company nor any of its Subsidiaries has made any change failures to do so would not, individually or in accounting methodsthe aggregate, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely be expected to have a Company an Acquiror Material Adverse Effect, Acquiror has (i) withheld all material amounts of Taxes required to have been withheld by it in connection with amounts paid to any employee, independent contractor, director, agent, manager, supplier, lender, creditor, stockholder, or any other third party and (ii) remitted such amounts required to have been remitted to the appropriate Governmental Authority. All Forms W-2 or 1099 or other Tax Returns required with respect thereto have been properly completed and timely filed.
(d) Acquiror is not currently engaged in any material audit, administrative, or judicial proceeding with a taxing authority with respect to Taxes. Acquiror has not received any written notice from a taxing authority of a proposed deficiency of a material amount of Taxes, other than any such deficiencies that have since been resolved. No Audit (as hereinafter defined) written claim has been made by any Governmental Authority in a jurisdiction where Acquiror does not file a Tax Authority Return that such entity is presently pending with regard or may be subject to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment that jurisdiction in respect of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result that would be the subject of such Audits Tax Return, which have claim has not been finally resolved and fully paid.
(f) resolved. There are no agreements, consents outstanding agreements extending or waivers to extend waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or payment reassessment of, material Taxes of any Taxes or deficiencies against the Company or any of its SubsidiariesAcquiror, and no power written request for any such waiver or extension is currently pending.
(e) To the knowledge of attorney applicable Acquiror, there are no facts, circumstances, or plans that, either alone or in combination, could reasonably be expected to either prevent the Company or any Transactions from qualifying for the Intended Tax Treatment.
(f) Other than the representations and warranties set forth in Section 5.6, this Section 5.9 contains the exclusive representations and warranties of its Subsidiaries Acquiror with respect to any Taxes is Tax matters. Nothing in force.
(g) Neither the Company nor any of its Subsidiaries is this Section 5.9 shall be construed as providing a party to, representation or is bound by, any agreement, arrangement or policy relating warranty with respect to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periodsany taxable period (or portion thereof) beginning following the Closing Date or (ii) the existence, the Company and each of its Subsidiaries has withheld from its employeesamount, independent contractorsexpiration date, creditors, stockholders, customers and third parties, and timely paid to the appropriate or limitations on (or availability of) any Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawattribute.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Western Acquisition Ventures Corp.), Agreement and Plan of Merger (Western Acquisition Ventures Corp.), Merger Agreement (Western Acquisition Ventures Corp.)
Taxes. Except as set forth The Company and each subsidiary has filed all Tax Returns which it is required to file under applicable laws; all such Tax Returns are true and accurate and has been prepared in Section 3.16 compliance with all applicable laws; the Company has paid all Taxes due and owing by it or any subsidiary (whether or not such Taxes are required to be shown on a Tax Return) and have withheld and paid over to the appropriate taxing authorities all Taxes which it is required to withhold from amounts paid or owing to any employee, stockholder, creditor or other third parties; and since December 31, 1998, the charges, accruals and reserves for Taxes with respect to the Company (including any provisions for deferred income taxes) reflected on the books of the Company Disclosure Schedule:
(a) Each are adequate to cover any Tax liabilities of the Company and if its Subsidiaries has (i) duly filed (or there have been filed current tax year were treated as ending on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision hereof. No claim has been made on its behalf for its sole benefit and recourse) for by a taxing authority in a jurisdiction where the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of Company does not file tax returns that the Company or any Subsidiary thereofsubsidiary is or may be subject to taxation by that jurisdiction. There are no foreign, federal, state or local tax audits or administrative or judicial proceedings pending or being conducted with respect to the Company or any subsidiary; no information related to Tax matters has been requested by any foreign, federal, state or local taxing authority; and, except for Liens for Taxes not yet due and for which adequate reserves have as disclosed above, no written notice indicating an intent to open an audit or other review has been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither received by the Company nor or any subsidiary from any foreign, federal, state or local taxing authority. There are no material unresolved questions or claims concerning the Company's Tax liability. The Company (A) has not executed or entered into a closing agreement pursuant to Section 7121 of its Subsidiaries the Internal Revenue Code or any predecessor provision thereof or any similar provision of state, local or foreign law; and (B) has made not agreed to or is required to make any adjustments pursuant to Section 481 (a) of the Internal Revenue Code or any similar provision of state, local or foreign law by reason of a change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) method initiated by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andsubsidiaries or has any knowledge that the IRS has proposed any such adjustment or change in accounting method, or has any application pending with any taxing authority requesting permission for any changes in accounting methods that relate to the knowledge business or operations of the Company, no such Audit is threatened.
(e) An Audit of each . The Company has not been a United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (real property holding corporation within the meaning of Section 1504(b897(c)(2) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither Internal Revenue Code during the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described period specified in Section 162(m)(1897(c)(1)(A)(ii) of the Internal Revenue Code.
Section 1. 1502-6 (or comparable provisions of state, local or foreign law), (B) as a transferee or successor, (C) by contract or indemnity or (D) otherwise. The Company is not a party to any tax sharing agreement. The Company has not made any payments, is obligated to make payments or is a party to an agreement that could obligate it to make any payments that would not be deductible under Section 280G of the Internal Revenue Code. For purposes of this Section 3.1(o):
Appears in 3 contracts
Sources: Common Stock Purchase Agreement (Aquis Communications Group Inc), Common Stock Purchase Agreement (Aquis Communications Group Inc), Common Stock Purchase Agreement (Aquis Communications Group Inc)
Taxes. Except as set forth in Section 3.16 4.16 of the Company ASC Disclosure ScheduleLetter and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on ASC:
(a) Each of the Company ASC and its Subsidiaries each ASC Subsidiary has (i) duly timely filed (or there have been filed on its behalf) in accordance with the appropriate Tax Authorities (as hereinafter defined) applicable law all Tax Returns (as hereinafter defined) required to be filed by it or with respect to it, its operations and assets, and has paid or caused to be paid all Taxes required to be paid. All Tax Returns filed by ASC or any ASC Subsidiary with respect to Taxes were prepared in compliance with all applicable laws and regulations and were true, complete, and correct in all respects as of the date on which they were filed or prior as subsequently amended to the date hereof. Complete copies of this Agreementfederal, state, local, and foreign Tax Returns of ASC and each such Tax Return is correct ASC Subsidiary for each of the years ended 1999 and complete in all material respects and (ii) duly paid in full or, 1998 have heretofore been delivered or made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior available to MeriStar. Prior to the date hereof, ASC has provided to MeriStar copies of this Agreement, except all revenue agents' reports and other written assertions of deficiencies or other liabilities for those Taxes being contested in good faithof ASC and each ASC Subsidiary with respect to past periods for which the applicable statute of limitations has not expired.
(b) There ASC and each ASC Subsidiary has timely paid all Taxes for which a notice of, or assessment or demand for, payment has been received or which are no Liens for Taxes upon any property or assets of the Company otherwise due and payable with respect to ASC or any Subsidiary thereofASC Subsidiary, its operations and assets (in each case, whether or not shown on any Tax Return), except for Liens for Taxes not yet due that are being contested in good faith by appropriate proceedings (all of which are disclosed on Section 4.16(b) of the ASC Disclosure Letter) and for payment of which Taxes adequate reserves will have been established in accordance with GAAP with full provision made for set up as of the payment thereofClosing Date.
(c) Neither ASC and each of the Company nor any of its ASC Subsidiaries has made any change in accounting methodscomplied with all applicable law, received a ruling from any Tax Authority rules, and regulations relating to the withholding of Taxes and has timely collected or signed an agreement with regard withheld and paid over to Taxes reasonably likely the proper governmental authorities all amounts required to have a Company Material Adverse Effectbe so collected or withheld and paid over for all prior periods under all applicable laws.
(d) There are no outstanding agreements, waivers, or arrangements extending the statutory period of limitations for the assessment or collection of Taxes with respect to any Tax Return that relates to ASC or any ASC Subsidiary, which waivers or extensions currently are in effect, and no request for any such waiver or extension is currently pending.
(e) There are no Tax rulings, request for rulings, or closing agreements relating to ASC or any ASC Subsidiary which could affect its liability for Taxes for any period after the Closing Date.
(f) No Audit (as hereinafter defined) by a Tax Authority action, suit, proceeding, investigation, audit, claim, or assessment is presently pending or, to the knowledge of ASC, proposed with regard to any Taxes or Tax Returns of the Company that relate to ASC or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company ASC Subsidiary for which ASC would or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) could be liable. There are no agreements, consents requests from any taxing authority for information or waivers with respect to extend Taxes of ASC or the statutory period of limitations applicable to ASC Subsidiaries. Neither ASC nor the assessment or payment of ASC Subsidiaries has any Taxes or deficiencies against the Company knowledge or any fact or condition that, if known to any taxing authority having jurisdiction, would likely result in the issuance of its a notice of proposed deficiency or similar notice of intention to assess Taxes against ASC or the ASC Subsidiaries, and no power issue has arisen in any examination of attorney applicable to either ASC or the Company or ASC Subsidiaries by any of its Subsidiaries taxing authority that if raised with respect to any Taxes is other period not so examined would result in forcea material deficiency for any other period not so examined, if upheld.
(g) Neither the Company ASC nor any of the ASC Subsidiaries (i) has agreed to or is required to make any adjustment pursuant to Section 481 of the Code (or any predecessor or similar provision of other laws or regulations) by reason of a change in accounting method or otherwise; (ii) has knowledge that any taxing authority has proposed any such adjustment or change which proposal is currently pending; or (iii) has an application pending with any taxing authority requesting permission for any change in accounting methods that relates to its Subsidiaries business and operations.
(h) Neither ASC nor any ASC Subsidiary (i) is a party to, or is bound by, or has any agreementobligation under, arrangement any Tax sharing agreement or policy relating similar contract, (ii) has any current or potential contractual obligation to the allocationindemnify any other person with respect to Taxes, indemnification or sharing (iii) has any obligation to make distributions in respect of Taxes.
(hi) No Taxes are delinquent or constitute a lien against ASC or any ASC Subsidiary, except with respect to Taxes being contested in good faith by appropriate proceedings (all of which are disclosed on Section 4.16(i) of the ASC Disclosure Letter) and for payment of which Taxes adequate reserves have been established.
(j) There is no contract, agreement, plan, or arrangement covering any person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by ASC or MeriStar by reason of Section 280G of the Code.
(k) The Company, as the common parent of an affiliated group of corporations unused "net operating losses" (as defined in Section 1504 172 of the Code) consisting solely of ASC and each ASC Subsidiary (the years which all such net operating losses arose and will expire being set forth on Section 4.16(k) of the Company and ASC Disclosure Letter) are not subject to any limitations under Sections 382 or 384 of the Subsidiaries that Code, except for those limitations which are set forth in Section 4.16(k) of the ASC Disclosure Letter.
(l) No property of ASC or any ASC Subsidiary is "includable corporationstax-exempt use property" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) 168 of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Meristar Hotels & Resorts Inc), Merger Agreement (American Skiing Co /Me), Merger Agreement (Oak Hill Capital Partners L P)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly prepared, in the manner required by applicable Tax Law, and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter definedtaking into account any applicable extensions of time to file) all U.S. federal, state, local and non-U.S. income, corporation and franchise Tax Returns (as hereinafter defined) and all other material Tax Returns required to be filed by it on relating to any and all Taxes concerning or prior attributable to the date Company, any of this Agreementits Subsidiaries or their respective operations, and each such Tax Return is correct and complete Returns in all material respects are true, correct and (ii) duly paid in full or, made adequate accruals complete. The Company and reserves in its books and records in accordance with GAAP with full provision (or there has been Subsidiaries have timely paid or such provision has been made on its behalf for its sole benefit withheld and recourse) for the payment of, timely paid over all material Taxes for all periods ending on or prior to the date of this Agreement, except for those (other than Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith and for which adequate reserves have been established in accordance with GAAP with full provision made GAAP) that have become due, whether or not shown on any Tax Return.
(b) Neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the payment thereofdate of the Balance Sheet other than in the ordinary course of business.
(c) Neither the Company nor any of its Subsidiaries has made executed any change in accounting methods, received a ruling from waiver of any statute of limitations on or extension of the period for the assessment or collection of any material Tax Authority or signed an agreement with regard respect to Taxes reasonably likely to have a Company Material Adverse Effectany open tax year.
(d) No Audit (Except as hereinafter definedset forth in Section 4.14(d) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Disclosure Schedule, (i) no audit or other examination of any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income or other material Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any proposed audit or other examination of any such Tax Return; and (ii) no material adjustment relating to any Tax Return filed by the Company has been completed proposed in writing by any Governmental Authority that remains unsettled or unpaid. No claim has been made in writing within the applicable past three years by any Governmental Authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Authorities Returns that any of them is or may be subject to taxation by that jurisdiction.
(e) There are (and immediately following the Effective Time there will be) no Liens on the Assets of the Company or the applicable statutes any of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996its Subsidiaries relating or attributable to Taxes, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidother than Permitted Encumbrances.
(f) There are no agreementsNeither the Company nor any of its Subsidiaries is, consents or waivers to extend has been during the statutory five-year period ending on the date hereof, a “United States real property holding corporation” within the meaning of limitations applicable to Section 897(c)(2) of the assessment or payment Code.
(g) Except as set forth in Section 4.14(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has (i) any material liability for the Taxes of any Taxes or deficiencies against person (other than the Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, and no power local or non-U.S. Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by contract, by operation of attorney applicable to either Law or otherwise (including, without limitation, liability for social security payments for subcontractors) or (ii) any material liability under any Tax sharing, indemnification or allocation agreement (other than among a group the common parent of which was the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Subsidiaries). Neither the Company nor any of its Subsidiaries is a party toto any joint venture, partnership or other agreement that is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxestreated as a partnership for Tax purposes.
(h) The CompanyExcept as set forth in 4.14(h) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries will be required to include any material income or gain in or exclude any material deduction or loss from income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting made on or prior to the common parent Closing Date, (ii) closing agreement under Section 7121 of an affiliated group the Code (or any corresponding or similar provision of corporations state, local, or foreign income Tax Law) entered into on or prior to the Closing Date, (as defined in iii) income deferred under Section 1504 108(i) of the Code, (iv) consisting solely deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or foreign income Tax Law) in connection with a transaction entered into prior to the Closing Date, (v) installment sale or open transaction disposition entered into prior to the Closing Date or (vi) prepaid amount received prior to the Closing Date.
(i) Within the past three years, neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(j) Neither the Company nor any of its Subsidiaries has been a party to a reportable transaction under Treas. Reg. § 1.6011-4(b).
(k) The Company and each of its Subsidiaries is in material compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(l) Except as set forth in Section 4.14(l) of the Company and Disclosure Schedule, there is no Contract to which the Subsidiaries Company is a party, including the provisions of this Agreement, covering any employee, consultant or director of the Company, that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code. There is no Contract to which the Company or any ERISA Affiliate is a party or by which it is bound to compensate any employee, consultant or director for excise Taxes paid pursuant to Section 4999 of the Code. The Company has provided Parent with a list of all persons who are "includable corporations" “disqualified individuals” (within the meaning of Section 1504(b280G of the Code and the regulations promulgated thereunder) as determined as of the date hereof.
(m) Except as set forth in Section 4.14(m) of the Company Disclosure Schedule, the Company is not party to any Contract that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code and the regulations and other guidance promulgated thereunder. The Company is not a party to, or otherwise obligated under, any Contract that provides for a gross up of Taxes imposed by Section 409A of the Code. Each nonqualified deferred compensation plan (as defined in Section 409A(d)(1) of the Code)) is in material compliance and has been operated in material compliance with Section 409A of the Code. Each Company Option, has filed since 1994 a consolidated return for stock appreciation right, or other similar right to acquire Company Shares or other equity of the Company granted to or held by an individual or entity who is or may be subject to United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries taxation has been a member of an affiliated group filing a consolidated United States federal Tax Return other exercise price that that is not less than the affiliated group in which they are currently members and fair market value of which the underlying equity as of the date such Company is the common parentOption, stock appreciation right or other similar right was granted.
(in) With respect Except as set forth in Section 4.14(n) of the Company Disclosure Schedule, the Company and its Subsidiaries are in compliance in all material respects with all applicable transfer pricing Laws, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of the Company and its Subsidiaries.
(o) The Company has made available to completed pay periods, Parent or its legal counsel or accountants copies of all income and franchise Tax Returns and all related work papers (including work papers in connection with financial statement reserves for Taxes) of the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with for all Tax withholding provisions of applicable lawperiods beginning on or after January 1, 2007.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Transcend Services Inc)
Taxes. Except (a) Employee shall be liable for any and all taxes, including withholding taxes, arising out of this grant or the vesting of Shares hereunder. In the event that the Company is required to withhold taxes as a result of the grant or vesting of the Shares, or subsequent sale of the Shares, Employee shall surrender a sufficient number of whole Shares or make a cash payment as necessary to cover all applicable required withholding and payroll-based taxes at the time the Shares vest and the transfer restrictions on the Shares, as described in Section 5, lapse (or at such other time as required by applicable laws), unless alternative procedures for such payment are established by the Company. Employee will receive a cash refund for any fraction of a surrendered Share not necessary for required withholding taxes and required social security contributions. To the extent that any surrender of Shares or payment of cash or alternative procedure for such payment is insufficient, Employee authorizes the Company, its affiliates and subsidiaries, which are qualified to deduct tax at source, to deduct all applicable required withholding taxes and social security contributions from Employee’s compensation. Employee agrees to pay any amounts that cannot be satisfied from wages or other cash compensation, to the extent permitted by law.
(b) Employee understands that Section 83(a) of the Internal Revenue Code of 1986, as amended (the “Code”), taxes as ordinary income the difference between the amount paid for the Shares and the fair market value of the Shares as of the date all “forfeiture restrictions” on the Shares have lapsed. In this context, “forfeiture restrictions” mean the forfeiture obligation set forth in Section 3 of this Agreement and the restriction on transferability as set forth in Section 3.16 5 of this Agreement and in Section 7 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofPlan.
(c) Neither Employee understands that Employee may elect to be taxed at the time the Shares are issued, based on the value of the Shares at the issuance date, rather than when and as the forfeiture restrictions lapse (on the vesting dates), by filing an election under Section 83(b) (an “83(b) Election”) of the Code with the Internal Revenue Service within 30 days from the date of issuance. Employee acknowledges that the foregoing is only a summary of the effect of United States federal income taxation with respect to issuance and vesting of the Shares hereunder, and does not purport to be complete. The Company nor has directed Employee to seek independent advice regarding the applicable provisions of the Code, the income tax laws of any municipality, state or foreign country in which Employee may reside, the tax consequences of its Subsidiaries has made Employee’s death, and the decision as to whether or not to file an 83(b) Election (as well as appropriate advice and assistance with the actual filing of any change such 83(b) Election) in accounting methods, received a ruling from any Tax Authority or signed an agreement connection with regard to Taxes reasonably likely to have a Company Material Adverse Effectthe issuance of the Shares.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending Regardless of any action the Company takes with regard respect to any Taxes or Tax Returns all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), Employee acknowledges and agrees that the ultimate liability for all Tax-Related Items legally due by Employee is and remains Employee’s responsibility and that the Company (i) makes no representations nor undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of this issuance of Shares, including the vesting of the Company Shares or the subsequent sale of the Shares; and (ii) does not commit to structure the terms or any aspect of its Subsidiaries and, this issuance of Shares to reduce or eliminate Employee’s liability for Tax-Related Items. Prior to the knowledge vesting of the CompanyShares, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of Employee shall pay the Company or any amount of its Subsidiaries has been completed by Tax-Related Items that the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted Company may be required to withhold as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 Employee’s receipt of the Code) consisting solely Stock Award or Employee’s receipt of Shares that cannot be satisfied by the means previously described. The Company and may refuse to deliver the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect Shares if Employee fails to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects comply with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated Employee’s obligations in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the CodeTax-Related Items.
Appears in 3 contracts
Sources: Restricted Stock Award Agreement (Ziprealty Inc), Restricted Stock Award Agreement (Ziprealty Inc), Restricted Stock Award Agreement (Ziprealty Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has Except as would not have a Parent Material Adverse Effect, (i) duly Parent and each of the Parent Subsidiaries have timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) will timely file all Tax Returns (as hereinafter defined) returns and reports required to be filed by it them with any taxing authority with respect to Taxes for any period ending on or before the Effective Time, taking into account any extension of time to file granted to or obtained on behalf of Parent and the Parent Subsidiaries, (ii) all Taxes that are due prior to the Effective Time have been paid or will be paid (other than Taxes which (1) are not yet delinquent or (2) are being contested in good faith and have not been finally determined), (iii) as of the date of this Agreement, no deficiency for any material amount of Tax has been asserted or assessed by a taxing authority against Parent or any of the Parent Subsidiaries and (iv) Parent and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made of the Parent Subsidiaries have provided adequate accruals and reserves in its books and records in accordance with GAAP with full provision (generally accepted accounting principles in their financial statements for any Taxes that have not been paid, whether or there has been paid or such provision has been made not shown as being due on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithany returns.
(b) To the Knowledge of Parent, there are no material disputes pending, or claims asserted in writing for, Taxes or assessments upon Parent or any of the Parent Subsidiaries, nor has Parent or any of the Parent Subsidiaries been requested in writing to give any currently effective waivers extending the statutory period of limitation applicable to any federal or state income tax return for any period in which disputes, claims, assessments or waivers are reasonably likely to have a Parent Material Adverse Effect.
(c) There are no Liens for Taxes Tax liens upon any property or assets of the Company Parent or any Subsidiary thereof, of the Parent Subsidiaries except liens for Liens for current Taxes not yet due and except for liens which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes not had and are not reasonably likely to have a Company Parent Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to Neither Parent nor any Taxes or Tax Returns of the Company Parent Subsidiaries has been required to include in income any adjustment pursuant to Section 481 of the Code by reason of a voluntary change in accounting method initiated by Parent or any of its Subsidiaries andthe Parent Subsidiaries, and the IRS has not initiated or proposed any such adjustment or change in accounting method, in either case which adjustment or change has had or is reasonably likely to the knowledge of the Company, no such Audit is threatenedhave a Parent Material Adverse Effect.
(e) An Audit of each United States federal income Tax Return of Except as set forth in the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996financial statements described in Section 4.07, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company neither Parent nor any of its the Parent Subsidiaries has entered into a transaction which is a party to, or is bound by, any agreement, arrangement or policy relating to being accounted for under the allocation, indemnification or sharing installment method of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 453 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 which would be reasonably likely to have a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentParent Material Adverse Effect.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Careinsite Inc), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company All material reports, filings, statements, declarations and its Subsidiaries has returns (i) duly filed (or there have been filed on its behalfcollectively, "Tax Returns") with the appropriate Tax Authorities respect to taxes, charges, fees, levies or assessments (as hereinafter defined) all Tax Returns (as hereinafter definedcollectively, "Taxes") required to be filed by it on the Acquired Corporation as of the Effective Time have been or prior to the date of this Agreementwill be duly filed, and each such Tax Return is Returns are or will be true and correct and complete in all material respects respects. The Acquired Corporation has paid or will pay all Taxes shown as due and (ii) duly paid in full orpayable on such Tax Returns; and the charges, made adequate accruals and reserves in its books and records in accordance for Taxes with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior respect to the Acquired Corporation reflected in the Acquired Corporation's financial statements are adequate under GAAP to cover Taxes accruing through the date of this Agreementthereof, except for those Taxes being including contested in good faithamounts and amounts not yet due and payable.
(b) There are no Liens material claims with respect to Taxes pending against the Acquired Corporation and the Acquired Corporation is not aware of any threatened claim for Taxes upon any property or assets of the Company or any Subsidiary thereof, except basis for Liens for Taxes not yet due and for which adequate reserves such claims. No material issues have been established raised in accordance any examination by any Governmental Authority with GAAP with full provision made respect to the Acquired Corporation which reasonably could be expected to result in a proposed deficiency for any other period not so examined, and there are not now in force any waivers or agreements by the Acquired Corporation for the payment thereofextension of time for the assessment of any material Taxes, nor has any such waiver or agreement been requested by any Governmental Authority. The Acquired Corporation does not have any liability for any material Taxes of any corporation or entity other than the Acquired Corporation.
(c) Neither the Company nor any of its Subsidiaries The Acquired Corporation has made any change in accounting methods, received a ruling from any Tax Authority paid or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, withholding and will pay when due to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax proper Governmental Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers material withholding amounts required to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries be withheld with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of all Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Clyde Companies Inc), Agreement and Plan of Merger (Clyde Companies Inc), Agreement and Plan of Merger (Clyde Companies Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and each of its Subsidiaries has (i) duly have timely filed (or there and ----- will have been timely filed on its behalf) with or prior to the appropriate Tax Authorities (as hereinafter defined) Effective Time all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date any of this Agreement, and each them. All such Tax Return is Returns are true, correct and complete in all material respects complete. All Taxes (as hereinafter defined) of the Company and (ii) duly paid in full orits Subsidiaries that are shown as due on such Tax Returns, made adequate accruals or are otherwise due and reserves in its books and records in accordance with GAAP with full provision (payable, or there has are claimed or asserted by any taxing authority to be due, have been paid or such provision has will have been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending paid on or prior to before the date of this AgreementEffective Time, or adequate reserves (in conformity with GAAP applied on a consistent basis and consistent with such entities past custom and practice) have been established therefor, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith and for which adequate reserves have been established in the financial statements included in the Company Reports in accordance with GAAP applied on a consistent basis and consistent with full provision made such entities custom and practice. No deficiencies for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andhave been claimed, proposed or assessed by any taxing or other governmental authority that are not being contested in good faith by the Company or a Subsidiary and for which adequate reserves have not been established (in conformity with GAAP applied on a consistent basis and consistent with such entity's past custom and practice) in the financial statements included in the Company Reports. There are no pending or, to the knowledge best of the Company's and its Subsidiaries' knowledge, threatened audits, investigations or claims for or relating to any liability in respect of Taxes of the Company or its Subsidiaries, and there are no such Audit on-going negotiations with any taxing or other governmental authority with respect to Taxes of the Company or its Subsidiaries. No extension of a statute of limitations relating to Taxes is threatened.
in effect with respect to the Company or any of its Subsidiaries. The Company and each Subsidiary have withheld and paid over to the relevant taxing authority all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, stockholders or other third parties. The Company and its Subsidiaries are not parties to or bound by any tax sharing, tax indemnity or tax allocation agreement or other similar arrangement with any other person or entity. There are no liens for Taxes (eother than for Taxes not yet delinquent) An Audit upon any of each United States federal income Tax Return the assets of the Company or any of its Subsidiaries. The Company and its Subsidiaries have never been members of an affiliated group of corporations within the meaning of Section 1504 of the Code, with the exception of the common group for which the Company is the common parent, nor has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any predecessor or affiliate of any of them, become liable (whether by contract, as transferee or successor, by law or otherwise) for the Taxes of any other person or entity under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign law. The Company and its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are have not been "includable United States real property holding corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.Section
Appears in 3 contracts
Sources: Merger Agreement (Telocity Delaware Inc), Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Hughes Electronics Corp)
Taxes. (a) Except as set forth in Section 3.16 on Schedule 4.15(a) of the Company Acquirer Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Letter, all material Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to the date Crosstex Entities have been filed and all Tax Returns of this Agreement, the Crosstex Entities are complete and each such Tax Return is correct and complete in all material respects and (ii) duly all material Taxes due relating to the Crosstex Entities have been paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision full. There is no claim (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes other than claims being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith through appropriate proceedings and for which adequate reserves have been established made in accordance with GAAP GAAP) against any Crosstex Entity for any material Taxes, and no material assessment, deficiency, or adjustment has been asserted or proposed in writing with full provision made for respect to any material Taxes or material Tax Returns of or with respect to the payment thereofCrosstex Entities.
(b) Except as set forth on Schedule 4.15(b) of the Acquirer Disclosure Letter, no material Tax audits or administrative or judicial proceedings are being conducted or are pending with respect to the Crosstex Entities.
(c) Neither All material Taxes required to be withheld, collected or deposited by or with respect to the Company nor any of its Subsidiaries has made any change in accounting methodsCrosstex Entities have been timely withheld, received a ruling from any Tax Authority collected or signed an agreement with regard deposited as the case may be, and to Taxes reasonably likely the extent required, have been paid to have a Company Material Adverse Effectthe relevant taxing authority.
(d) No Audit (Except as hereinafter definedset forth on Schedule 4.15(d) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Acquirer Disclosure Letter, there are no outstanding agreements or waivers extending the applicable statutory periods of limitation for the payment or assessment of any material Tax of, or any of its Subsidiaries and, to material Taxes associated with the knowledge ownership or operation of the Companyassets of, no such Audit is threatenedany Crosstex Entity.
(e) An Audit of each United States federal income Tax Return None of the Company Crosstex Entities is a party to any Tax sharing agreement or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996indemnification agreement, and no adjustments were asserted as a result of payments are due or will become due by any Crosstex Entity pursuant to any such Audits which have not been finally resolved and fully paidagreement or arrangement.
(f) There are no agreements, consents None of the Crosstex Entities has engaged in a transaction that would be reportable by or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceCrosstex Entity pursuant to Treasury Regulation § 1.6011-4 or any predecessor thereto.
(g) Neither the Company nor There are no Liens on any of its Subsidiaries is a party to, the assets of any Crosstex Entity that arose in connection with any failure (or is bound by, alleged failure) to pay any agreement, arrangement or policy relating to the allocation, indemnification or sharing of TaxesTax.
(h) The Company, Except as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(bset forth on Schedule 4.15(h) of the Code)Acquirer Disclosure Letter, none of the Crosstex Entities has filed since 1994 been a consolidated return for United States federal income Tax purposes on behalf member of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries or is a successor to an entity that has been a member of an affiliated group filing a consolidated United States federal income Tax Return other than or has any liability for the affiliated group in which they are currently members and Taxes of which the Company is the common parentany Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract, or otherwise.
(i) With respect Crosstex MLP has not elected to completed pay periods, be treated as a corporation for federal Tax purposes. Crosstex MLP qualifies as a “publicly traded partnership” within the Company and each meaning of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(jSection 7704(b) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger Code and at least 90% of the gross income of Crosstex MLP for each taxable year since its formation has been from sources that are treated as “qualifying income” within the payment meaning of any amount described in Section 162(m)(17704(d) of the Code. Crosstex MLP has filed a federal income tax return that has in effect an election pursuant to Section 754 of the Code.
Appears in 3 contracts
Sources: Contribution Agreement, Contribution Agreement (Crosstex Energy Lp), Contribution Agreement (Devon Energy Corp/De)
Taxes. (a) Except as set forth in Section 3.16 Schedule 3.11 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has , (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defineddefined in Section 3.11(d) hereof) required to be filed by it on or prior with respect to Taxes of the Company and each of its Subsidiaries as of the date hereof have been filed in a timely manner (taking into account all lawful extensions of this Agreementdue dates) other than those Tax Returns as to which the failure to file would not reasonably be expected to have a Material Adverse Effect, and each all such Tax Return is Returns are true, complete and correct and complete in all material respects and respects, (ii) duly all Taxes due and payable have been timely paid in full or, made or adequate accruals and reserves in its books and records provision in accordance with GAAP with full provision (or there has been paid or respect to the matters covered by such provision Tax Returns has been made on its behalf for its sole benefit and recourse) for the payment oftherefor, (iii) the Company and each of its Subsidiaries has properly accrued all Taxes for all periods ending on or prior subsequent to the date periods covered by such Tax Returns, (iv) the Company and each of this Agreementits Subsidiaries have not received any written notice of deficiency or assessment from any taxing authority with respect to liabilities for Taxes of the Company or its Subsidiaries that have not been fully paid, except for those Taxes being finally settled or contested in good faith.
, (bv) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither neither the Company nor any of its Subsidiaries has made executed or filed with any change taxing authority any agreement now in accounting methodseffect extending the period for assessment or collection of any Taxes (except for extensions to file Tax Returns which may have such effect), received a ruling from any Tax Authority or signed an agreement (vi) there are no Liens with regard respect to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to upon any Taxes of the properties or Tax Returns assets of the Company or its Subsidiaries and (vii) since the date of the most recently audited financial statements of the Company and each of its Subsidiaries, the Company has incurred no liability for Taxes under Sections 857(b), 860(c) or 4981 of the Code, including without limitation, any Tax arising from a prohibited transaction described in Section 857(b)(6) of the Code, and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes other than in the ordinary course of business.
(b) The Company (i) will elect to be taxed as a real estate investment trust (a "REIT") within the meaning of the Code commencing with its taxable year ending December 31, 1997, (ii) for all taxable years commencing with its taxable year ending December 31, 1997, has been organized and operated in conformity with the requirements for taxation as a REIT within the meaning of Section 856 of the Code, (iii) has operated to the date hereof, and intends to continue to operate, in such a manner as to qualify as a REIT for all of its taxable years ending on or prior to the Closing, and (iv) has not taken or omitted to take any action which would result in a successful challenge to its status as a REIT and, to the knowledge of the Company, no such Audit challenge is pending or threatened.
(ec) An Audit of each United States federal income Tax Return Each of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Company's corporate Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (Qualified REIT Subsidiary as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b856(i) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group each partnership, limited liability company or joint venture in which they are currently members and of which the Company is the common parent(either directly or indirectly) owns an equity interest thereof has been treated since its formation and continues to be treated for federal income tax purposes as a partnership and not as an association taxable as a corporation.
(d) For purposes of this Agreement, (i) With respect to completed pay periods"Taxes" means all taxes, levies or other like assessments, charges or fees (including estimated taxes, charges and fees), including, without limitation, income, corporation, advance corporation, gross receipts, transfer, excise, property, sales, use, value-added, license, payroll, withholding, social security and franchise or other governmental taxes or charges, imposed by the Company and each of its Subsidiaries has withheld from its employeesUnited States or any state, independent contractorscounty, creditors, stockholders, customers and third partieslocal or foreign government or subdivision or agency thereof, and timely paid such term shall include any interest, penalties or additions to the appropriate tax attributable to such taxes and (ii) "Tax AuthorityReturn" means any report, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect return, statement or other written information required to any matter relating be supplied to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated a taxing authority in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the CodeTaxes.
Appears in 3 contracts
Sources: Merger Agreement (Tower Realty Trust Inc), Merger Agreement (Reckson Associates Realty Corp), Merger Agreement (Reckson Associates Realty Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and its Subsidiaries each Company Subsidiary has (i) duly filed (and timely filed, or there have been has caused to be duly and timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) , all income and other material Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each all such Tax Return is correct Returns are true, complete and complete accurate in all material respects respects. All material Taxes of the Company and the Company Subsidiaries (iiwhether or not shown to be due on such Tax Returns) have been duly and timely paid. All Taxes required to be withheld by the Company or any Company Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except proper Governmental Entity or properly set aside in accounts for those Taxes being contested in good faithsuch purpose.
(b) There The most recent financial statements contained in the Filed Company SEC Documents reflect an adequate reserve for all Taxes payable by the Company and the Company Subsidiaries (in addition to any reserve for deferred Taxes to reflect temporary differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements. No deficiency with respect to any material amount of Taxes which has been asserted or assessed (or, to the Knowledge of the Company, proposed or threatened) against the Company or any Company Subsidiary remains unpaid or unresolved, and no requests for waivers of the time to assess any such Taxes are no Liens for Taxes upon any property or assets pending. None of the Company or any Company Subsidiary thereofis currently under audit, except for Liens for examination, investigation or other proceeding by any Governmental Entity with respect to material Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofor a material Tax Return.
(c) Neither The federal income Tax Returns of the Company nor and each Company Subsidiary consolidated in such Tax Returns have been examined by and settled with the IRS, or have closed by virtue of the expiration of the relevant statute of limitations, for all years through 2015. All material assessments for Taxes due with respect to such completed and settled examinations or any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to concluded litigation have a Company Material Adverse Effectbeen fully paid.
(d) No Audit jurisdiction (as hereinafter definedwhether within or without the United States) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of in which the Company or any of its Subsidiaries has been completed by not filed a particular type of Tax Return or paid a particular type of Tax has asserted that the applicable Company or such Company Subsidiary is required to file such Tax Authorities Return or pay such type of Tax in such jurisdiction.
(e) None of the Company or any Company Subsidiary 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 applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996Closing Date, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidany (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481 of the Code (or any corresponding provision of state, local or foreign income Tax law), (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) prepaid amount received on or prior to the Closing Date, (iv) any election pursuant to Section 108(i) or Section 451 of the Code (or any similar provision of state, local or foreign Law) or (v) using the deferral method provided for under Revenue Procedure 2004-34 in respect of any transaction occurring or payment received prior to the Closing.
(f) There are no agreementsNone of the Company or any Company Subsidiary has received or applied for 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), consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against in either case that would be binding upon the Company or any of its Subsidiaries, and the Company Subsidiaries after the Closing Date.
(g) There are no power material Liens for Taxes (other than Permitted Liens) on the assets of attorney applicable to either the Company or any of its Subsidiaries Company Subsidiary. Neither the Company nor any Company Subsidiary (i) is bound by any agreement requiring it to make a payment to a Person (other than the Company or any Company Subsidiary) with respect to Taxes or (ii) has any liability for the Taxes is in forceof any Person (whether under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, pursuant to any Tax sharing or indemnity agreement or other contractual agreements, or otherwise).
(gh) None of the Company or any Company Subsidiary has participated or engaged in any transaction that constitutes a “listed transaction” within the meaning of Treasury Regulations section 1.6011-4(c) (or any analogous, comparable or similar provision of state, local or foreign Law).
(i) Neither the Company nor any of its Subsidiaries is Company Subsidiary has been a party to, “distributing corporation” or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (a “controlled corporation” within the meaning of Section 1504(b355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution that could otherwise constitute a “plan” or “series of related transactions” in conjunction with the transaction contemplated by this Agreement.
(j) The Company has validly elected pursuant to Section 965(h) of the Code)Code to defer its Section 965(h) net tax liability, has filed since 1994 a consolidated return and except for United States federal income Tax purposes on behalf of itself and such Subsidiaries and the Merger contemplated by this Agreement, neither the Company nor any of such Subsidiaries Company Subsidiary has been a member of taken any action that would be treated as an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentacceleration event under Treasury Regulations Section 1.965-7(b)(3).
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Anixter International Inc), Merger Agreement (Wesco International Inc), Merger Agreement (Wesco International Inc)
Taxes. Except as set forth in Section 3.16 PFS and the PFS Subsidiaries that are at least 80 percent owned by PFS are members of the Company Disclosure Schedule:
(a) Each same affiliated group within the meaning of the Company and its Subsidiaries Code Section 1504(a). PFS has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) federal, state and material local tax returns required to be filed by it or with respect to PFS and each Significant Subsidiary of PFS on or prior to the Closing Date, taking into account any extensions (all such returns, to the Knowledge of PFS, being accurate and correct in all material respects) and has duly paid or made provisions for the payment of all material federal, state and local taxes which have been incurred by or are due or claimed to be due from PFS and any Significant Subsidiary of PFS by any taxing authority or pursuant to any written tax sharing agreement on or prior to the Closing Date other than taxes or other charges which (i) are not delinquent, (ii) are being contested in good faith, or (iii) have not yet been fully determined. As of the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there PFS has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment received no notice of, all Taxes for all periods ending on or prior and to the date Knowledge of this AgreementPFS, except for those Taxes being contested in good faith.
(b) There are there is no Liens for Taxes upon any property audit examination, deficiency assessment, tax investigation or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance refund litigation with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard respect to any Taxes or Tax Returns taxes of the Company PFS or any of its Subsidiaries andSignificant Subsidiaries, to the knowledge of the Company, and no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company claim has been made by any authority in a jurisdiction where PFS or any of its Significant Subsidiaries has been completed by the applicable Tax Authorities (do not file tax returns that PFS or the applicable statutes of limitation for the assessment of Taxes for any such periods have expired) for all periods through Significant Subsidiary is subject to taxation in that jurisdiction. Except as set forth in PFS DISCLOSURE SCHEDULE 5.7, PFS and including 1996, and no adjustments were asserted as a result of such Audits which its Significant Subsidiaries have not been finally resolved and fully paid.
(f) There are no agreements, consents executed an extension or waivers to extend the statutory period waiver of any statute of limitations applicable to on the assessment or payment collection of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes material tax due that is currently in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company effect. PFS and each of its Significant Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, paid all taxes required to have been withheld and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and PFS and each of its Significant Subsidiaries, to the closing Knowledge of PFS, has timely complied with all applicable information reporting requirements under Part III, Subchapter A of Chapter 61 of the Merger for the payment of any amount described in Section 162(m)(1) of the CodeCode and similar applicable state and local information reporting requirements.
Appears in 3 contracts
Sources: Merger Agreement (Provident Financial Services Inc), Merger Agreement (First Sentinel Bancorp Inc), Merger Agreement (Provident Financial Services Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
Crompton Filed SEC Documents, (a) Each of the Company and its Subsidiaries Crompton has (i) duly filed all U.S. federal and material state and local and foreign income, franchise, excise, real and personal property and other tax returns and reports (including, but not limited to, those filed on a consolidated, combined or there unitary basis) required to have been filed on its behalf) with the appropriate Tax Authorities by Crompton, (as hereinafter definedb) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to of the date of this Agreement, foregoing returns and each such Tax Return is reports are complete and correct and complete in all material respects respects, and Crompton has timely paid all taxes shown as due on such returns or reports, (iic) duly Crompton has paid in full or, or made adequate accruals and reserves in its books and records provision (in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf GAAP) in the financial statements of Crompton included in the Crompton SEC Documents for its sole benefit and recourse) for the payment of, all Taxes for taxes payable in respect of all periods ending on or prior to December 26, 1998, (d) neither Crompton nor any of its subsidiaries has requested any extension of time within which to file any returns in respect of any year that have not since been filed, (e) no deficiencies for any tax, assessment or governmental charge have been proposed, asserted or assessed, in each case, in writing, by any taxing authority, against Crompton or any of its subsidiaries for which there are not adequate reserves (in accordance with GAAP), (f) as of the date of this Agreement, except for those Taxes being contested in good faith.
(b) There there are no Liens pending requests for Taxes upon any property or assets waivers of the Company or time to assess any Subsidiary thereofsuch tax, except for Liens for Taxes not yet due other than those made in the ordinary course and for which payment has been made or there are adequate reserves have been established (in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methodsGAAP), received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any U.S. federal income tax returns of Crompton and its Subsidiaries is a party tosubsidiaries have been audited by the IRS through the fiscal year ending December 31, or is bound by1995, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
and (h) The Company, as the common parent of Crompton has not filed an affiliated group of corporations (as defined in election under Section 1504 341(f) of the Code) consisting solely Code to be treated as a consenting corporation. Crompton is not aware of any fact or circumstance that would prevent the Company and First Step Merger or the Subsidiaries that are Second Step Merger from qualifying as a "includable corporationsreorganization" (within the meaning of Section 1504(b368(a) of the Code). The term "tax" shall include all U.S. federal, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself state and such Subsidiaries local and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members foreign taxes, including interest and of which the Company is the common parentpenalties thereon and additions thereto.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Crompton & Knowles Corp), Agreement and Plan of Reorganization (Witco Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each The Acquired Fund is a "fund" as defined in Section 851(g)(2) of the Company Code and has elected to be a regulated investment company under Subchapter M of the Code. The Acquired Fund has qualified for treatment as such for each taxable year since inception that has ended prior to the Closing Date and will continue to satisfy the requirements of Subchapter M of the Code to maintain such qualification for the period beginning on the first day of its Subsidiaries current taxable year and ending on the Closing Date. The Acquired Fund has no earnings and profits accumulated in any taxable year in which the provisions of Subchapter M of the Code did not apply to it. In order to (i) duly filed insure continued qualification of the Acquired Fund for treatment as a regulated investment company for tax purposes and (ii) eliminate any tax liability of the Acquired Fund arising by reason of undistributed investment company taxable income or there net capital gain, AAF will declare on or prior to the Closing Date to the shareholders of the Acquired Fund a dividend or dividends that, together with all previous dividends, shall have been filed on its behalf) with the appropriate Tax Authorities effect of distributing (as hereinafter definedA) all Tax of the Acquired Fund's investment company taxable income (determined without regard to any deductions for dividends paid) for the taxable year ended December 31, 1999, and for the short taxable year beginning on January 1, 2000, and ending on the Closing Date and (B) all of the Acquired Fund's net capital gain recognized in its taxable year ended December 31, 1999, and in such short taxable year (after reduction for any capital loss carryover).
(b) The Acquired Fund has timely filed all Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each such Tax Return is correct and complete all Taxes with respect thereto have been paid, except where the failure so to file or so to pay would not reasonably be expected, individually or in all material respects and (ii) duly paid in full orthe aggregate, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such to have a Material Adverse Effect. Adequate provision has been made on its behalf in the Acquired Fund Financial Statements for its sole benefit and recourse) for the payment of, all Taxes for in respect of all periods ending ended on or prior to before the date of this Agreementsuch financial statements, except where the failure to make such provisions would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. No deficiency for those any Taxes being contested has been proposed, assessed or asserted in good faith.
(b) There are no Liens for Taxes upon writing by any property taxing authority against the Acquired Fund, where such deficiency would reasonably be expected, individually or assets in the aggregate, to have a Material Adverse Effect. No waivers of the Company time to assess any such Taxes are outstanding nor are any written requests for such waivers pending, and no Returns of the Acquired Fund are currently being or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance audited with GAAP with full provision made for the payment thereofrespect to income taxes or other Taxes by any Federal, state, local or foreign Tax authority.
(c) Neither To the Company nor any best knowledge of its Subsidiaries has made any change in accounting methodsAAF, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns the fiscal year of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries Acquired Fund has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidchanged for tax purposes since the date on which it commenced operations.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Plan of Reorganization (Aim Advisor Funds Inc), Agreement and Plan of Reorganization (Aim Advisor Funds Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and its Subsidiaries has (i) duly filed (timely filed, or there have been has ------ caused to be timely filed on its behalf) with the appropriate Tax Authorities behalf (as hereinafter defined) in each case, taking into account any extension of time within which to file), all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementit, and each all such Tax Return is correct Returns are true, complete and complete accurate in all material respects respects. All Taxes shown to be due on such Tax Returns, or otherwise owed, have been timely paid except (i) where the payment of such Taxes is being or was contested in good faith by the Company and (ii) duly paid in full or, made the Company has established adequate accruals and reserves in its books and records for such Taxes in accordance with GAAP with full provision or (or there has been paid or ii) where the failure to pay such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes would not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely be expected to have a Company Material Adverse Effect.
(db) The most recent financial statements contained in the Filed Company SEC Documents reflect an adequate reserve for all Taxes payable by the Company for all Taxable periods and portions thereof through the date of such financial statements. No Audit (as hereinafter defined) by a Tax Authority is presently pending deficiency with regard respect to any Taxes has been proposed, asserted or assessed against the Company, and no requests for waivers of the time to assess any such Taxes are pending.
(c) The Tax Returns of the Company have been examined by and/or settled with the relevant Taxing Authority for all years through December 31, 1995, or the applicable statutory period for the assessment of the Tax to which the Tax Return relates has expired. All material assessments for Taxes due with respect to such completed and settled examinations or any concluded litigation have been fully paid. Neither the Internal Revenue Service nor any other Taxing Authority has given notice (either orally or in writing) that it will commence any such audit or examination.
(d) There are no material pledges, liens, charges, mortgages, encumbrances or security interests of its Subsidiaries andany kind or nature whatsoever (collectively, "Liens") for Taxes (other than for current Taxes not yet due and ----- payable and for Taxes as to which the knowledge Company is contesting in good faith and has established adequate reserves in accordance with GAAP) on the assets of the Company, no such Audit . The Company is threatenednot bound by any agreement with respect to Taxes.
(e) An Audit The Company shall not be required to include in a taxable period ending after the Effective Time an amount of each United States federal taxable income Tax Return of the Company or attributable to income that accrued in a prior taxable period but was not recognized in any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted prior taxable period as a result of such Audits which have not been finally resolved the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting or Section 481 of the Code or comparable provisions of state, local or foreign Tax law, and fully paidthere is no application pending with any Taxing Authority requesting permission for any change in any accounting method of the Company.
(f) There are no agreementsThe Company may not be held liable for, consents or waivers may not be required to extend the statutory period of limitations applicable to the assessment or payment make any contribution with respect to, Taxes of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
person (g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than members of the affiliated group in which they are currently members and of which the Company is the common parent) by reason of Treasury Regulation Section 1.1502-6 or any comparable provision of state, local or foreign law or under any Tax indemnity, Tax sharing or similar agreement.
(i) With There are no outstanding agreements or waivers extending, or having the effect of extending, the statutory period of limitation applicable to any Tax Returns required to be filed with respect to completed pay periods, the Company,
(ii) neither the Company and each nor any affiliated group, within the meaning of its Subsidiaries Section 1504 of the Code, of which the Company is or has withheld from its employeesever been a member, independent contractorshas requested any extension of time within which to file any Tax Return, creditors, stockholders, customers and third partieswhich return has not yet been filed, and timely paid (iii) no power of attorney with respect to any Taxes has been executed or filed with any Taxing Authority by or on behalf of the appropriate Tax Authority, proper amounts Company.
(h) The Company has complied in all material respects with all Tax applicable Laws relating to the payment and withholding provisions of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 3121 and 3402 of the Code or any comparable provision of any state, local or foreign Laws) and have, within the time and in the manner prescribed by applicable lawLaw, withheld from and paid over to the proper Taxing Authorities all amounts required to be so withheld and paid over under applicable Laws.
(ji) No power For purposes of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
Taxes. (a) Except as set forth in Section 3.16 3.14(a) of the Company Disclosure Schedule:
: (ai) Each of the Company and each of its Subsidiaries have timely filed all income Tax Returns and all other material Tax Returns required to be filed by them, and each such Tax Return has been prepared in substantial compliance with all applicable laws and regulations and all such Tax Returns are true and correct; (iii) duly filed the Company and each of its Subsidiaries have paid (or there have been filed the Company has paid on behalf of its behalf) with the appropriate Tax Authorities (as hereinafter definedSubsidiaries) all Tax Returns material Taxes (as hereinafter defined) required to be filed paid in respect of the periods covered by it on or prior to such returns and have made adequate provision in the date Company’s financial statements for payment of this Agreement, and each such Tax Return is correct and complete in all material respects Taxes that have not been paid, whether or not shown as due and (ii) duly paid payable on any Tax Return, in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (respect of all taxable periods or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods portions thereof ending on or prior to before the date of this Agreementhereof, except for those Taxes being contested in good faith.
subject to quarterly and year-end adjustments; and (biii) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither neither the Company nor any of its Subsidiaries has made incurred any change material liability for Taxes subsequent to the date of the most recent financial statements contained in accounting methods, received a ruling from any Tax Authority the SEC Reports other than in the ordinary course of the Company’s or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectsuch Subsidiary’s business.
(db) No Audit (Except as hereinafter definedset forth in Section 3.14(b) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, Disclosure Schedule: (i) no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed is under audit or examination by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996any taxing authority, and no adjustments were asserted as a result written notice of such Audits an audit or examination or any other audit or examination with respect to Taxes has been received by the Company or any of its Subsidiaries; (ii) each deficiency resulting from any audit or examination relating to Taxes by any taxing authority has been paid, except for deficiencies currently being contested in good faith and for which adequate reserves, as applicable, have not been finally resolved and fully paid.
established in the Company’s financial statements in accordance with GAAP; (fiii) There there are no agreements, consents or waivers to extend Liens for Taxes upon the statutory period assets of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, except Liens relating to current Taxes not yet due and no power of attorney applicable payable or otherwise being contested in good faith as to either which appropriate reserves have been established in the Company’s financial statements in accordance with GAAP; (iv) all Taxes which the Company or any of its Subsidiaries with respect are required by law to any Taxes is in force.
withhold or to collect for payment have been duly withheld and collected; (gv) Neither none of the Company nor or any of its Subsidiaries has consented to extend the time in which any Tax may be assessed or collected by any taxing authority; and (vi) no written claim has been made by any taxing authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating may be subject to the allocation, indemnification or sharing of Taxestaxation in that jurisdiction.
(hc) The Company, Except as the common parent of an affiliated group of corporations (as defined set forth in Section 1504 3.14(c) of the CodeCompany Disclosure Schedule, there is no Contract or other arrangement, plan or agreement by or with the Company or any of its Subsidiaries covering any person that, individually or collectively, could give rise to the payment of any amount by the Company or any of its Subsidiaries that would not be deductible by the Company or such Subsidiary by reason of Sections 280G or 162(m) consisting solely of the Code (or any corresponding provision of state, local or foreign law).
(d) Each of the Company and its Subsidiaries have made available to Acquisition Corp. and Parent true, correct and complete copies of income Tax Returns for the years ended July 31, 2004 and July 31, 2005, and all examination reports and statements of deficiencies assessed against or agreed to by any of the Company or any of its Subsidiaries that are "includable corporations" have been filed by or submitted to any of the Company or any of its Subsidiaries for such taxable years.
(within the meaning of e) Except as set forth in Section 1504(b3.14(e) of the Code)Company Disclosure Schedule, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf none of itself and such Subsidiaries and neither the Company nor or any of such its Subsidiaries (i) has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which was the Company), (ii) is a party to or bound by any Tax allocation or Tax sharing agreement with any Person other than the affiliated group in which they are currently members Company and its Subsidiaries, (iii) has any liability for the Taxes of which any Person (other than any of the Company is or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise or (iv) has any liability for the common parent.
(i) With respect to completed pay periodsTaxes of any Person other than the Company, the Subsidiaries of the Company and each or in connection with the acquisition, directly or indirectly, of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect Person acquired by the Company or any of its Subsidiaries.
(kf) Neither Except as set forth in Section 3.14(f) of the Company nor any Subsidiary shall become obligated in connection with the closing Disclosure Schedule, none of the Merger Company or any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the payment Closing Date as a result of any amount (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision of state, local or foreign income Tax Law); (ii) “closing agreement” as described in Code § 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Code § 1502 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale made prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(g) None of the Company or any of its Subsidiaries has been a U.S. real property holding corporation within the meaning of Section 162(m)(1897(c)(2) of the Code during the applicable period specified in Section (897)(c)(1)(A)(ii) of the Code.
(h) Except as set forth in Section 3.14(h) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries has distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code Sections 355 or 361.
(i) As used in this Section 3.14, the terms (i) “Tax” (and, with correlative meaning, “Taxes”) means: (A) any federal, state, local or foreign income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value added, transfer, stamp, environmental or other tax, or any other tax of any kind whatsoever, whether disputed or not, together with any interest or penalty or addition to tax imposed by any Governmental Authority and (B) any liability of the Company or any of its Subsidiaries for payments of a type described in clause (A) as a result of (I) any obligation of the Company or any of its Subsidiaries under any tax sharing agreement or tax indemnity agreement or (II) the Company or any of its Subsidiaries being a member of an affiliated group (other than one of which the Company is the parent); and (ii) “Tax Return” means any report, return or other information or document required to be supplied to or filed with a taxing authority in connection with Taxes.
Appears in 2 contracts
Sources: Merger Agreement (National Home Health Care Corp), Merger Agreement (National Home Health Care Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Seller has filed, and its Subsidiaries has (i) duly filed (or there have been filed will file, on its behalf) with the appropriate Tax Authorities (as hereinafter defined) a timely basis, all Tax Returns (as hereinafter defined) required to be filed by it on or prior accurately reflecting all Taxes owing to the date United States or any other government or any government subdivision, state, local, or foreign, or any other Taxing authority. Seller has paid in full all Taxes for which it has or may have liability, regardless of this Agreement, and each whether shown on a Tax Return. All such Tax Return is correct Returns are true, correct, and complete in all material respects and (ii) duly paid all positions taken by Seller therein are supported by a reasonable basis. Seller has no Knowledge of any unassessed Tax deficiency proposed or threatened against Seller as a result of the operation of the Business. Seller is not currently the beneficiary of any extension of time within which to file any Tax Return required to be filed by Seller in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior respect to the date of this Agreement, except for those Taxes being contested in good faithBusiness or the Purchased Assets.
(b) There are no Liens for Taxes upon Encumbrances on any property or assets Purchased Assets as a result of the Company or any Subsidiary thereof, Tax liabilities except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance payable. There are, and after the date of this Agreement will be, no Tax deficiencies of any kind assessed against or relating to Seller with GAAP with full provision made for respect to any Taxable period ending on or before the payment thereofClosing Date.
(c) Neither Seller has complied in all respects with all Legal Requirements relating to the Company nor any payment and withholding of its Subsidiaries has made any change Taxes, and Seller has, within the time and in accounting methodsthe manner prescribed by law, received a ruling from any Tax Authority or signed an agreement with regard withheld and paid over to Taxes reasonably likely the proper governmental authorities all amounts required to have a Company Material Adverse Effectbe so withheld and paid over under applicable Legal Requirements.
(d) No Audit (as hereinafter defined) by Seller is not a Tax Authority is presently pending with regard party to any action, audit or proceeding by any Taxing or other Governmental Authority for the assessment or collection of Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge Knowledge of the CompanySeller, no such Audit action has been proposed, threatened, or asserted. Seller is threatenednot and will not, be liable for the Taxes of any other Person as transferee or successor, by contract or otherwise. Seller is not a “foreign person” pursuant to Section 1445 of the Code.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents outstanding agreements or waivers to extend extending the statutory period of limitations applicable to the assessment or payment any Tax Return of Seller for any Taxes or deficiencies against the Company or any Period and Seller has not agreed to an extension of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries time with respect to a Tax assessment or deficiency. Neither the IRS nor any Taxes state, local, or foreign Taxing authority has audited any Tax Return filed by Seller within the past six (6) years.
(f) Seller is not a party to any Tax rulings or closing agreements. Schedule 5.7 sets forth all jurisdictions in forcewhich Seller has filed or will file Tax Returns with respect to the Purchased Assets or the Business for each Taxable period, or portion thereof, ending on or before the Closing Date. Seller has provided the Purchaser with true and complete copies of Seller’s Tax Returns for all Taxable periods beginning after since its formation.
(g) Neither the Company nor There are no Tax sharing arrangements or similar arrangements (whether written or oral) in effect that include Seller, and Seller has no liability to any of its Subsidiaries is a party to, person with respect to any previously terminated Tax sharing agreement or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxessimilar arrangement.
(h) The CompanyExcept as set forth on Schedule 5.7, as the common parent of an affiliated group of corporations (as defined no claim has ever been received by Seller from any Governmental Authority in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 any jurisdiction where Seller does not file a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than that Seller is, or may be, subject to Taxation in that jurisdiction with respect to the affiliated group in which they are currently members and of which Purchased Assets or the Company is the common parentBusiness.
(i) With respect to completed pay periods, the Company and each The unpaid Taxes of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force Seller with respect to any matter relating to Taxes that could affect the Company Purchased Assets and the Business do not exceed the amount accrued for such Tax liability on the most recent balance sheet contained in the Financial Statements or any the New Monthly Financial Statements, as adjusted for Seller’s Ordinary Course of its Subsidiaries.
(k) Neither Business through the Company nor any Subsidiary shall become obligated Closing Date in connection accordance with the closing past practice and custom of the Merger for the payment of any amount described Seller in Section 162(m)(1) of the Codefiling its Tax Returns.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Streamline Health Solutions Inc.), Asset Purchase Agreement (Streamline Health Solutions Inc.)
Taxes. Except Subject to such exceptions as set forth would not, individually or in Section 3.16 of the Company Disclosure Scheduleaggregate, reasonably be expected to have a Material Adverse Effect:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed by it or on behalf of Company or prior its Subsidiaries have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to the date be filed (after giving effect to any valid extensions of this Agreementtime in which to make such filings), and each all such Tax Return is correct Returns were true, complete and complete in all material respects and correct; (ii) duly paid in full orall Taxes due and payable by or on behalf of Company or its Subsidiaries, made adequate accruals either directly, or otherwise, have been fully and reserves in its books and records timely paid, except to the extent adequately reserved therefor in accordance with GAAP and/or applicable regulatory accounting principles or banking regulations consistently applied on the Company balance sheet, and adequate reserves or accruals for Taxes have been provided in the Company balance sheet with full provision respect to any period through the date thereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing; and (iii) no agreement, waiver or there other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitation) has been paid executed or such provision has been made filed with any taxing authority by or on behalf of Company or any of its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithSubsidiaries.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereofand its Subsidiaries have complied with all applicable laws, except for Liens for Taxes not yet due rules and for which adequate reserves have been established in accordance with GAAP with full provision made for regulations relating to the payment thereofand withholding of Taxes and have duly and timely withheld from any salaries, wages or other compensation paid to any employee or independent contractor, and have paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws.
(c) Neither Company has furnished to Parent true and correct copies of (i) all income Tax Returns of Company relating to all taxable periods beginning after January 31, 2005; and (ii) any audit report issued within the last three years relating to any Taxes due from or with respect to Company nor any of and its Subsidiaries has made any change in accounting methodswith respect to their income, received a ruling from any Tax Authority assets or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectoperations.
(d) No Audit (as hereinafter defined) written claim has been made by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the taxing authority in a jurisdiction where Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal does not file an income or franchise Tax Return of the such that Company or any of its Subsidiaries has been completed is or may be subject to taxation by the applicable Tax Authorities that jurisdiction.
(i) All deficiencies asserted or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted assessments made as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents any examinations by any taxing authority of the Tax Returns of or waivers to extend the statutory period of limitations applicable to the assessment covering or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the including Company or any of its Subsidiaries have been fully paid or adequately reserved therefor on the Company balance sheet and, to the Company’s knowledge, there are no other audits or investigations by any taxing authority in progress, nor has Company or any of its Subsidiaries received any written notice from any taxing authority that it intends to conduct such an audit or investigation; (ii) no requests for a ruling or a determination letter are pending with respect any taxing authority; and (iii) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against Company or any Taxes is in forceof its Subsidiaries for any subsequent taxable period.
(gf) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to the tax allocation, indemnification or sharing of Taxesagreement (or similar agreement or arrangement), whether written or not written, pursuant to which it will have any obligation to make any payments after the Closing.
(hg) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Neither Company nor any of such its Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return Affiliated Group (other than the affiliated a group whose common parent was Company).
(h) Neither Company nor any of its Subsidiaries has requests for rulings in which they are currently members respect of Taxes pending between Company or its Subsidiaries and of which the Company is the common parentany taxing authority.
(i) With respect to completed pay periodsThere is no contract, the Company and each of its Subsidiaries has withheld from its employeesagreement, independent contractorsplan or arrangement covering any Person that, creditorsindividually or collectively, stockholders, customers and third parties, and timely paid could give rise to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions payment of applicable lawany amount that would not be deductible by Company or its affiliates by reason of Section 280G of the Code.
(j) No power There are no Encumbrances as a result of attorney is currently in force with respect to any matter relating to due and unpaid Taxes that could affect upon any of the assets of Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Each agreement, plan or arrangement (whether written or oral) that is a “nonqualified deferred compensation plan” (as defined under Section 162(m)(1409A(d)(1) of the Code) has been operated and administered in reasonable, good faith compliance with Section 409A of the Code and the guidance provided thereunder from the period beginning January 1, 2005 through the date hereof and no such agreement, plan or arrangement which was in effect prior to October 4, 2004, which Company determined to not be subject to Section 409A of the Code, has been materially modified after October 3, 2004. No equity-based compensation arrangement or award granted under any such agreement, plan or arrangement is considered “deferred compensation” within the meaning of Section 409A of the Code.
(l) Each Company Stock Option that was not fully vested and exercisable as of December 31, 2004 has an exercise price at least equal to the fair market value, within the meaning of Section 409A of the Code, of a share of Company Stock on a date no earlier than the date of the corporate action authorizing the grant and has a grant date identical to the date of the corporate action authorizing the grant.
Appears in 2 contracts
Sources: Merger Agreement (Bottomline Technologies Inc /De/), Merger Agreement (Optio Software Inc)
Taxes. Except as set forth in Section 3.16 5.1 The Parties consider that neither stamp duty reserve tax nor stamp duty should apply under the Finance Act to the issue of the Company Disclosure ScheduleDepositary Receipts insofar as such issuance forms part of an arrangement to issue or transfer chargeable securities to a clearance service or depositary receipt system pursuant to the Finance Act.
5.2 The Client warrants to Computershare that:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Deposit Agreement
(i) PricewaterhouseCoopers LLP has submitted a clearance application (the “Clearance Application”) to HMRC dated April 17, and each such Tax Return is correct and 2018 (a complete in all material respects and copy of which Clearance Application having been provided to Computershare),
(ii) duly paid PricewaterhouseCoopers LLP received a response from HMRC to the Clearance Application on April 27, 2018 in full ora form consistent with the terms of the Clearance Application which confirms that none of the transactions involving Computershare or the Custodian in respect of which clearance was sought (including the issue of Company Securities to the Custodian, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) as nominee for the payment ofDepositary, all Taxes for all periods ending on the Commencement Date) give rise to stamp duty and/or stamp duty reserve tax, whether payable by either Computershare or the Custodian or otherwise, and that such response has not been amended or revoked;
(b) prior to the date of this Deposit Agreement, qualified UK legal counsel, on behalf of the Client has delivered a legal opinion to the Client, which shall be co-addressed to the Depositary or on which the Depositary can rely, and which shall be reasonably acceptable to the Depositary, which opines that, as of the date of the opinion, none of:
(i) the issue of the Company Securities to the Custodian, as nominee for the Depositary, in connection with the exchange by FTL1 and FTL2 of shares in DTZ Jersey Holdings Limited for such Company Securities, with the effect that such Company Securities constitute Deposited Property, and the registration of such Company Securities in the name of the Custodian;
(ii) the issuance by the Depositary of Depositary Receipts representing such Company Securities to FTL1 and FTL2, in connection with the share exchange described in paragraph (b)(i) above;
(iii) the capital reduction relating to such Company Securities proposed to be carried out shortly after the Commencement Date, pursuant to which the nominal value of the Company Securities will be reduced;
(iv) the proposed consolidation and division of the Company’s ordinary share capital, for the purposes of achieving an appropriate pricing on the initial public offering of the Company’s ordinary shares, which will result in a reduction of both the number of Company Securities held by the Custodian and the number of issued and outstanding Depositary Receipts;
(v) the transfer of any Depositary Receipts by a registered holder thereof pursuant to the terms of this Deposit Agreement; or
(vi) the cancellation of Depositary Receipts and the transfer of the underlying Company Securities by the Custodian, as nominee for Computershare, to Cede & Co, as nominee for DTC, would give rise to United Kingdom stamp duty and/or stamp duty reserve tax payable by either the Depositary or the Custodian, and that such opinion has not been amended or revoked (the “Opinion”); and
(c) that in connection with any additional deposits of Company Securities made after the date of this Deposit Agreement, or in connection with any other transactions involving Company Securities or Depositary Receipts contemplated by this Deposit Agreement, except for those Taxes being contested transactions in good faithrespect of which clearance was obtained in the Clearance Application, prior to the effective date of such deposit or other transaction, qualified UK legal counsel will confirm to the Client whether (to the extent that a clearance application to HMRC has not already been made) any clearance application to HMRC would be beneficial in respect thereof and, if reasonably requested by Computershare, provide a legal opinion as to whether such deposit or other transaction would give rise to United Kingdom stamp duty and/or stamp duty reserve tax payable by either the Depositary or the Custodian.
5.3 The Client undertakes to Computershare to notify Computershare as promptly as practicable in writing in the event that (bi) There it considers that stamp duty reserve tax or stamp duty applies under the Finance Act to the issue of Depositary Receipts, or (ii) any of the warranties set out in Section 5.2 is incorrect or not being met. In the event of such notification or Computershare otherwise discovers that the warranties in Section 5.2 are no Liens for Taxes longer correct, Computershare reserves the right to terminate this Deposit Agreement upon 5 days prior written notice to the Client.
5.4 In the event that any property charge to stamp duty or assets stamp duty reserve tax is payable by Computershare in connection with the deposit of the Company Securities, the issuance of the Depositary Receipts or any Subsidiary thereofother transactions contemplated by this Deposit Agreement or pursuant to any instruction given to Computershare, except Computershare shall not be required to accept such deposit of Company Securities, to issue Depositary Receipts, enter into such transaction or execute such instruction, in each case unless and until the Client shall have first either furnished evidence of payment of any and all stamp duty reserve tax and/or stamp duty owing in connection therewith (in a form reasonably acceptable to Computershare) or Computershare has been funded in full with cleared funds in the amount of such stamp duty reserve tax or stamp duty. Section 5.6 and Sections 6.2 to 6.4 apply to this sub section and ‘Fees’ should be read to include the payment of stamp duty reserve tax and/or stamp duty as described herein. In the absence of (i) evidence reasonably satisfactory to Computershare of payment of such stamp duty and/or stamp duty reserve tax in full by the Client or (ii) receipt of cleared funds from the Client as provided above, Computershare reserves the right to take any reasonable action, or reasonably omit to take any action, in each case, where such action or omission would result in Computershare avoiding any liability for Liens stamp duty reserve tax or stamp duty. If Computershare is refunded or otherwise receives back any stamp duty or stamp duty reserve tax which was previously paid or funded on its behalf by the Client, Computershare may use such amount to discharge any outstanding Liability and refund the balance to the Client.
5.5 In addition to any rights and remedies to which Computershare is entitled under Section 5.4, to the extent that Computershare (or its nominee) is accountable for Taxes not yet due and/or primarily liable and is required to pay stamp duty reserve tax (or stamp duty) pursuant to the Finance Act (or otherwise under other UK enactments or regulations), in respect of any chargeable securities transferred or issued to, or appropriated by, Computershare, pursuant to this Deposit Agreement, each Holder agrees that where such Holder is to issue, transfer or ensure the transfer to Computershare of Company Securities in relation to which Computershare will issue Depositary Receipts, the Holder shall, before such issue, transfer or appropriation, pay to Computershare in cleared funds, or to HMRC on behalf of Computershare, an amount equal to the stamp duty reserve tax (or stamp duty) for which adequate reserves Computershare is liable in respect of such transfer, issue or appropriation, if any.
5.6 In addition to the foregoing, all fees and other sums payable by the Client under this Deposit Agreement are exclusive of Taxes, and the Client shall, in addition to any Fees, pay any Taxes due thereon (other than Excluded Taxes), so that the net amount received by Computershare is not less than the amount which Computershare would have received had no such Taxes been established due, and shall promptly deliver to Computershare copies of all official receipts evidencing payment of such Taxes.
5.7 Notwithstanding anything to the contrary contained herein, the Client is responsible for all taxes, levies, duties, and assessments levied on the services provided under this Deposit Agreement (other than Excluded Taxes) (collectively, Transaction Taxes). Computershare shall be responsible for collecting and remitting Transaction Taxes in accordance all jurisdictions in which Computershare is registered to collect such Transaction Taxes. Computershare shall invoice Client for such Transaction Taxes that it is obligated to collect upon the furnishing of services hereunder. Computershare shall timely remit to the appropriate governmental authorities all such Transaction Taxes that Computershare collects from Client. To the extent that Client provides Computershare with GAAP with full provision made valid exemption certificates, direct pay permits, or other documentation that exempts Computershare from collecting Transaction Taxes from Client, invoices issued for services provided after Computershare’s receipt of such certificates, permits, or other documentation will not reflect exempted Transaction Taxes. Computershare shall be solely responsible for the payment thereofof all personal property taxes, franchise taxes, corporate excise or privilege taxes, property or license taxes, and Excluded Taxes, in each case arising from or in connection with the services provided hereunder.
(c) Neither 5.8 Computershare warrants to the Company nor any Client that, as of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.the date hereof:
(da) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries Computershare is a party to, person whose business is or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" includes issuing “depositary receipts” for “relevant securities” (within the meaning of Section 1504(bsection 69 of the Finance Act) and “depositary receipts” for “chargeable securities” (within the meaning of sections 94 and 99 of the Finance Act) for the purposes of sections 67(6) and 93(2) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf Finance Act; and
(b) the Custodian’s business is exclusively that of itself holding “relevant securities” (as defined in section 69(3) of the Finance Act) and such Subsidiaries and neither “chargeable securities” (as defined in section 99 of the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
Finance Act) (i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney as nominee or agent for a person whose business is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger includes issuing depositary receipts for the payment purposes of any amount described in Section 162(m)(1sections 67(6), 72A(2)(a), 93(3) and 97B(2)(a) of the CodeFinance Act, and (ii) for the purposes of such part of the business of the person referred to in (i) as consists of issuing “depositary receipts” for “relevant securities” and for “chargeable securities” for the purposes of sections 67(6), 72A(2)(a), 93(3) and 97B(2)(a) of the Finance Act.
Appears in 2 contracts
Sources: Agreement for the Provision of Depositary Services and Custody Services, Agreement for the Provision of Depositary Services and Custody Services (DTZ Jersey Holdings LTD)
Taxes. Except as set forth in Section 3.16 of has not been, and would not reasonably be expected to be, material to the Company Disclosure ScheduleAcquired Companies, taken as a whole:
(a) Each (i) the Company and each of the Company and its Subsidiaries has (i) duly have filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required by Applicable Law to be filed by it the Company or any of the Company Subsidiaries with any Taxing Authority when due (taking into account any available extensions) and in accordance with all Applicable Law; (ii) all such Tax Returns are accurate and complete in all respects; and (iii) the Company and each of the Company Subsidiaries have paid or withheld (or have had paid or withheld on their behalf) all Taxes required to be paid or prior withheld (whether or not shown on any Tax Return). The most recent Financial Statements reflect an adequate reserve in accordance with GAAP for potential amounts of all Taxes payable by the Company and the Company Subsidiaries for taxable periods and portions thereof accrued through the date of such Financial Statements and since the date of such Financial Statements, neither the Company nor any Company Subsidiary has incurred any Tax liabilities other than in the ordinary course of business or in connection with the Transactions;
(b) neither the Company nor any of the Company Subsidiaries (i) has requested, granted or agreed in writing to any extension or waiver of the statute of limitations period applicable to the assessment or collection of any Tax of the Company or any of the Company Subsidiaries (whether or not filed), which period (after giving effect to such extension or waiver) has not yet expired or (ii) has executed or filed any power of attorney with respect to Taxes which will be in effect after the Closing;
(c) as of the date of this Agreement, and each such Tax Return is correct and complete (i) no deficiencies for Taxes with respect to the Company or any of the Company Subsidiaries have been claimed, proposed or assessed in all material respects and writing by any Taxing Authority; (ii) duly paid there is no Proceeding pending against or threatened in full or, made adequate accruals writing against or with respect to the Company or any of the Company Subsidiaries in respect of any Tax; and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision iii) no claim has been made on its behalf for its sole benefit and recourse) for in writing by a Taxing Authority in a jurisdiction where the payment of, all Taxes for all periods ending on Company or prior any of the Company Subsidiaries does not file Tax Returns that the Company or any Company Subsidiary is or may be subject to the date of this Agreement, except for those Taxes being contested taxation or required to file Tax Returns in good faith.that jurisdiction;
(bd) There there are no Liens for Taxes upon on any property or assets of the Company or any Subsidiary thereofof the Company Subsidiaries, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.other than Permitted Liens;
(ce) Neither neither the Company nor any of its the Company Subsidiaries has made participated in any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
“listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any similar provision of its Subsidiaries andstate, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company local or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.foreign law);
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(gi) Neither neither the Company nor any of its the Company Subsidiaries is or has ever been a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent member of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b1504(a) of the Code) or any group that has filed a combined, consolidated or unitary Tax Return, other than, in each case, a group of which the Company or any Company Subsidiary is or was the common parent and (ii) neither the Company nor any Company Subsidiary has any liability for the Taxes of any Person (other than the Company or the Company Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Tax law), has filed since 1994 as a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and transferee or successor, or by Contract;
(g) neither the Company nor any of such the Company Subsidiaries (i) has applied for, been granted, or agreed in writing to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Code (or any similar provision of state, local or non-U.S. Tax law) or (ii) 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 (A) an installment sale or open transaction disposition made on or prior to the Closing Date, (B) a gain recognition agreement or closing agreement under Section 7121 of the Code (or any similar provision of state, local or non-U.S. Tax law) executed on or prior to the Closing Date, (C) an election pursuant to Section 108(i) of the Code made effective on or prior to the Closing Date, (D) an intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of Applicable Law) attributable to a transaction occurring on or prior to the Closing Date or (E) a prepaid amount or advance payment received, or deferred revenue accrued on or prior to the Closing Date;
(h) there are no Tax sharing agreements or similar arrangements, including Tax indemnity arrangements (other than commercial agreements or arrangements not primarily related to Taxes and entered into in the ordinary course of business) with respect to or involving the Company or any of the Company Subsidiaries, other than, in each case, any agreement or arrangement exclusively between or among the Company and the Company Subsidiaries;
(i) none of the Company or any of the Company Subsidiaries has been a member “controlled corporation” or a “distributing corporation” in any distribution that was purported or intended to be governed by Section 355 of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and Code (or any similar provision of which state, local or non-U.S. law) that occurred during the two (2)-year period ending on the date hereof;
(j) the Company is not, and has not been a United States real property holding corporation within the common parent.meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code;
(ik) With respect to completed pay periods, neither the Company nor any of the Company Subsidiaries has applied in writing for a ruling or determination from a Taxing Authority regarding a past or prospective transaction;
(l) the Company and each of its the Company Subsidiaries has complied with all Applicable Law relating to the collection, payment and withholding of taxes and has, within the time and the manner prescribed by Applicable Law, collected, withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid over to the appropriate Tax Authorityproper Taxing Authorities all amounts required to be so collected, proper amounts withheld and paid under Applicable Law;
(m) all related party transactions involving the Company or any Company Subsidiaries have been conducted at arm’s length in compliance in all material respects with all Tax withholding Section 482 of the Code and the Treasury Regulations promulgated thereunder and any corresponding or similar provisions of applicable law.Applicable Law;
(jn) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger Company Subsidiaries has or will have after the Closing any ongoing liability for any Taxes pursuant to Section 965 of the payment Code;
(o) neither the Company nor any of any amount described the Company Subsidiaries participated in an international boycott, as defined in Section 162(m)(1999 of the Code;
(p) neither the Company nor any of the Company Subsidiaries own any interest in any non U.S. corporation that is treated as a “passive foreign investment company” within the meaning of section 1297(a) of the CodeCode and is not also treated as a “controlled foreign corporation” within the meaning of Section 957(a);
(q) neither the Company nor any of the Company Subsidiaries owns any interest in any entity or is a party to any contractual arrangement, joint venture or other arrangement that would reasonably be expected to be characterized as a partnership for income Tax purposes;
(r) the Company and each of the Company Subsidiaries have timely collected all sales, use, goods and services, harmonized sales, value added, and similar Taxes required to be collected and has timely remitted such amounts to the appropriate Taxing Authority, or has been furnished properly completed exemption certificates; or
(s) the Company and each of the Company Subsidiaries are not subject to Tax in any country other than their respective country of incorporation or formation by virtue of having a permanent establishment or other fixed place of business in such other country.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.), Merger Agreement (Portola Pharmaceuticals Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Scheduleon Schedule 4.5:
(a) Each The Company and its Subsidiaries have properly completed and timely filed all income Tax Returns and all other material Tax Returns required to be filed by them. All such Tax Returns are true and correct in all material respects and have been completed in accordance with Law. All material Taxes required to have been paid and for which the Company and its Subsidiaries are liable (whether or not shown to be due on such Tax Returns) have been timely paid or withheld and timely paid to the appropriate Tax Authority.
(b) With respect to the Company and each of its Subsidiaries, there are no (i) deficiencies, audits, examinations, Actions, or other claims for material Taxes being asserted, threatened in writing, proposed in writing or assessed or that have been previously asserted against the Company and its Subsidiaries or any of their assets, (ii) Liens for material Taxes against the assets or property of the Company and its Subsidiaries, other than Liens for current Taxes not yet due and payable, (iii) audits, examinations, investigations or other proceedings relating to any Tax Return of the Company and its Subsidiaries has being conducted by a Tax Authority, (iiv) duly filed (waivers or there have been filed on extensions of any statute of limitations with respect to the assessment or deficiency of any Taxes granted by the Company and its behalf) with the appropriate Subsidiaries currently in effect or any extension of time within which to file any income or other material Tax Authorities (as hereinafter defined) all Return other than automatic extensions of time to file Tax Returns obtained in the ordinary course of business, or (as hereinafter definedv) pending requests for rulings or determinations by or before a Tax Authority relating to Taxes. The Company and its Subsidiaries have not been informed in writing by any Tax Authority that it will open an audit or other review of the Taxes or that it believes that such entity was required to be filed by it on or prior to the date of this Agreement, and each such file any Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes that was not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereoffiled.
(c) Neither the Company nor any of its Subsidiaries No written claim has been made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns of that the Company or any of its Subsidiaries andis or may be subject to taxation by, or required to the knowledge file any Tax Returns of a certain type of Tax in, that jurisdiction.
(d) The Company and its Subsidiaries have not engaged in a “listed transaction,” as defined in Section 6707A(c) of the Company, no such Audit is threatenedCode or Treasury Regulations Section 1.6011-4(b).
(e) An Audit of each United States federal income The Company and its Subsidiaries are not a party to or bound by any Tax Return of sharing or Tax allocation agreement, nor does the Company or any of and its Subsidiaries has been completed by the applicable Tax Authorities have any liability or potential liability to another party under any such agreement (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidother than pursuant to their Organizational Documents).
(f) There are no agreementsNeither Buyer nor the Company and its Subsidiaries will be required to include any item of income in, consents or waivers to extend exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the statutory period Closing Date as a result of limitations applicable any: (i) installment sale or other open transaction disposition made on or prior to the assessment Closing Date; (ii) prepaid amount received on or payment prior to the Closing Date; (iii) a closing agreement described in Section 7121 of the Code or any Taxes comparable or deficiencies against similar provision of state, local or foreign Law executed on or prior to the Closing Date; (iv) any change in method of accounting, or use of an improper method of accounting, for a taxable period or portion thereof ending on or before the Closing Date; or (v) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any comparable or similar provision of state, local or foreign Law).
(g) No private letter rulings, technical advice memoranda or similar agreements or rulings have been requested, entered into or issued by any taxing authority with respect to the Company or any of its Subsidiaries, and no power of attorney applicable to either nor is the Company or any of its Subsidiaries with respect party to any Taxes is “closing agreement” as described in force.
Section 7121 of the Code (g) Neither the Company nor or any comparable provision of its Subsidiaries is a party tostate, local or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxesnon-U.S. Law).
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any Tax matter relating to Taxes that could affect would, in any manner, bind, obligate or restrict Buyer or any of its Affiliates (including, after the Closing, the Company and its Subsidiaries).
(i) For U.S. federal income and all other applicable tax purposes, the Company and each of its Subsidiaries are currently, and have at all times since their formation, been, properly treated as an entity disregarded as separate from its sole owner which is a United States person within the meaning of Section 7701(a)(30) of the Code. None of the Company or any of its SubsidiariesSubsidiaries (other than any Subsidiary organized outside of the United States and which is listed on Schedule 4.5(i)) is subject to entity level Tax based on net or gross income or profits.
(kj) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of its Subsidiaries has made any election under Section 1101(g)(4) of Title XI of the Merger for the payment Bipartisan Budget Act of 2015, H.R. 1314, Public Law Number 114-74 or has failed to make any amount described in election that was available to be made by it under Section 162(m)(1) 6226 of the CodeCode (or a similar provision of state, local or other Tax law).
(k) The Company and each of its Subsidiaries are in material compliance with all escheat and unclaimed property applicable Laws.
(l) Neither the Company nor any of its Subsidiaries is a partner with respect to any joint venture (with any third party that is unaffiliated with Seller or any of its direct or indirect parent), partnership (with any third party that is unaffiliated with Seller or any of its direct or indirect parent) or similar arrangement treated as a partnership for U.S. federal income or applicable state or local Tax purposes.
(m) Neither the Company nor any of its Subsidiaries has engaged in a trade or business, had a permanent establishment or otherwise become resident for income Tax purposes in a jurisdiction outside the country of its formation.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Cogent Communications Holdings, Inc.), Membership Interest Purchase Agreement (T-Mobile US, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Purchased Entities is, and has been since its Subsidiaries has formation, properly treated as either a partnership (in the case of JCH Group) or a “disregarded entity” (in the case of all the Purchased Entities other than JCH Group) for U.S. federal and all applicable state and local income tax purposes.
(i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed by it or on behalf of a Purchased Entity or prior any Affiliated Group of which any Purchased Entity is or was a member have been duly and timely filed with the appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to the date be filed (after giving effect to any valid extensions of this Agreementtime in which to make such filings), and each all such Tax Return is Returns are true, complete and correct and complete in all material respects respects; and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending payable by or on behalf of a Purchased Entity and any Affiliated Group of which any Purchased Entity is or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves was a member have been established in accordance with GAAP with full provision made for the payment thereoffully and timely paid.
(c) Neither the Company nor any of its Subsidiaries Each Purchased Entity has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts complied in all material respects with all Tax applicable Laws relating to the payment and withholding provisions of Taxes and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be so withheld and paid under all applicable lawLaws.
(jd) Purchaser has received from the Sellers complete copies of all federal, state, local and foreign income or franchise Tax Returns of ▇▇▇▇▇ ▇▇▇▇, JCH Group and Sun Terra relating to all the taxable periods since their formation. All income and franchise Tax Returns have been filed by or on behalf of JCH AZ. Schedule 5.10(d) sets forth the Tax Returns of the Purchased Entities to the extent complete copies thereof have been provided to Purchaser.
(e) Sellers have received no written (or, to the Knowledge of Sellers, other) notice from a Taxing Authority in a jurisdiction where any Purchased Entity does not file Tax Returns such that it is or may be subject to taxation by that jurisdiction.
(f) All deficiencies asserted or assessments made as a result of any examinations by any Taxing Authority of the Tax Returns of, or including, any Purchased Entity have been fully paid, and, to the Knowledge of such Seller, there are no other audits or investigations by any Taxing Authority in progress, nor have Sellers or any Purchased Entity received any notice from any Taxing Authority that it intends to conduct such an audit or investigation. No issue has been raised by a Taxing Authority in any prior examination of any Purchased Entity which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency for any subsequent taxable period.
(g) No Purchased Entity nor any other Person (including the Sellers) on their behalf has (i) executed or entered into a closing agreement with any Taxing Authority with respect to any Purchased Entity, (ii) requested any extension of time within which to file any Tax Return, which Tax Return has not since been file, (iii) waived any statute of limitations or granted any extension for the assessment or collection of Taxes, which Taxes have not since been paid, or (iv) granted to any Person any power of attorney that is currently in force with respect to any matter relating Tax matter.
(h) No Seller is a foreign person within the meaning of Section 1445 of the Code.
(i) No Purchased Entity is a party to Taxes that could affect any tax sharing, allocation, indemnity or similar agreement or arrangement (whether or not written) pursuant to which it will have any obligation to make any payments after the Company Closing.
(j) No Purchased Entity is subject to any private letter ruling of the IRS or comparable rulings of any of its SubsidiariesTaxing Authority.
(k) Neither the Company nor Except as set forth on Schedule 5.10, there are no Liens as a result of any Subsidiary shall become obligated in connection with the closing unpaid Taxes upon any of the Merger for the payment Purchased Entity Assets.
(l) There is no taxable income of any amount described in Section 162(m)(1Purchased Entity that will be required under applicable Tax Law to be reported by the Purchaser or any of its Affiliates, including any Purchased Entity, for a taxable period beginning after the Closing Date which taxable income was realized (and reflects economic income) of arising prior to the CodeClosing Date.
Appears in 2 contracts
Sources: Master Transaction Agreement (Avatar Holdings Inc), Master Transaction Agreement (Avatar Holdings Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Scheduleon Schedule 4.6:
(a) Each of the Acquired Company and its Subsidiaries has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) that it was required to be filed file and has paid all Taxes required to have been paid by it on or prior to the date of this Agreement, and each it. All such Tax Return is Returns were true, correct and complete in all material respects respects. With respect to any period for which Tax Returns have not yet been filed or for which Taxes are not yet due or owing, the Acquired Companies have made due and (ii) duly paid sufficient accruals for such Taxes in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (the Acquired Company Financial Statements. All required estimated Tax payments sufficient to avoid any underpayment penalties or there has been paid or such provision has interest have been made by or on its behalf for its sole benefit of the Acquired Companies and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithAcquired Company Subsidiaries.
(b) Each Acquired Company has complied in all material respects with all applicable Laws, rules and regulations relating to the filing of Tax Returns, the payment and withholding of Taxes and has, within the time and in the manner prescribed by Law, withheld and paid over to the proper Governmental Authorities all amounts required to be so withheld and paid over under applicable Laws.
(c) No Acquired Company has agreed to any extension or waiver of the statute of limitations applicable to any Tax Return, or agreed to any extension of time with respect to a Tax assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired.
(d) No Acquired Company is a party to any Tax sharing, allocation, indemnity or similar agreement or arrangement (whether or not written) pursuant to which it will have any obligation to make any payments after the Closing.
(e) There are no Liens for unpaid Taxes upon any property or on the assets of the Company or any Subsidiary thereofAcquired Company, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidPermitted Liens.
(f) There are no agreementsActions, consents examinations or waivers audits currently pending or, to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its SubsidiariesSellers’ Knowledge, and no power of attorney applicable to either the Company or any of its Subsidiaries threatened with respect to any Taxes is Acquired Company in forcerespect of any Tax. No issue has been raised by a Taxing Authority in any prior Action or examination of any Acquired Company or any Acquired Company Subsidiary which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency for any subsequent taxable period.
(g) Neither the No claim has been made in writing by any Governmental Authority in a jurisdiction where any Acquired Company nor any of its Subsidiaries is a party todoes not file Tax Returns that an Acquired Company is, or is bound bymay be, any agreement, arrangement or policy relating subject to the allocation, indemnification or sharing of Taxesmaterial taxation by that jurisdiction.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the No Acquired Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for is subject to United States Taxes or required to file any Tax Returns in the United States and no Acquired Company engages in a trade or business in the United States nor has any income effectively connected to the United States. Each Acquired Company is properly classified for U.S. federal income Tax tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been as an association taxable as a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parentcorporation.
(i) With respect to completed pay periods, the No Acquired Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts granted in all material respects with all Tax withholding provisions of applicable law.
(j) No writing any power of attorney which is currently in force with respect to any matter Taxes or Tax Returns. Notwithstanding anything to the contrary contained in this Agreement, the representations and warranties in this Section 4.6 are the sole representations and warranties of TAT, the Sellers and the Acquired Companies relating to Taxes that could affect the Company or any of its SubsidiariesTax matters.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Transatlantic Petroleum Ltd.), Stock Purchase Agreement (Transatlantic Petroleum Ltd.)
Taxes. Except as set forth disclosed in Section 3.16 of the Company Disclosure ScheduleSchedule 3.17:
(a) Each of the Company all Applicable Taxes that have become due and its Subsidiaries has (i) duly filed (or there payable have been filed on its behalf) with the appropriate Tax Authorities properly paid;
(as hereinafter definedb) all Tax Returns (as hereinafter defined) with respect to Applicable Taxes that are required to be filed by it on or prior to the date of this Agreementhave been duly and timely filed and are true, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.respects;
(c) Neither there are no liens, security interests, pledges, charges or similar encumbrances for Taxes (including any interest, fine, penalty or additions to Tax imposed by a Governmental Entity in connection with such Taxes) on the Company nor any of its Subsidiaries has made any change in accounting methodsPurchased Assets, received a ruling from any Tax Authority or signed an agreement with regard to other than statutory liens for current Taxes reasonably likely to have a Company Material Adverse Effect.not yet due;
(d) No Audit Seller has not received notice of any pending claim (as hereinafter definedwhich remains outstanding) by a Tax Authority is presently pending with regard to from any applicable Governmental Entity for assessment of Applicable Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the CompanySeller’s Knowledge, no such Audit is claim has been made or threatened.; and
(e) An Audit of each United States federal income Tax Return of the Company no audit, administrative, judicial or any of its Subsidiaries other proceeding with respect to Property Taxes has been completed by the applicable Tax Authorities (commenced or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidis presently pending.
(f) There no written claim has ever been made by an authority in a jurisdiction where Seller does not file Tax Returns that it is or may be subject to taxation in that jurisdiction as a result of holding the Purchased Assets, and the Purchased Assets are not subject to Taxes in any jurisdiction in which Seller has not filed Tax Returns;
(g) no agreementsaudit, consents administrative, judicial or waivers other proceeding with respect to extend Applicable Taxes has been commenced or is presently pending;
(h) with respect to Applicable Taxes, there is not in force any extension of time with respect to the statutory period due date for the filing of limitations applicable any Tax Return of or with respect to Seller or any waiver or agreement for any extension of time for the assessment or payment of any Taxes or deficiencies against the Company or Applicable Tax. No request for any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes such waiver is in force.pending;
(gi) Neither the Company nor any of its Subsidiaries except as may be provided in joint operating agreements to which Seller is a party, Seller is not a party to, to or is bound by, by any agreement, arrangement or policy relating to the Applicable Tax allocation, indemnification sharing or sharing of Taxes.indemnity agreements or arrangements;
(hj) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 none of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (Purchased Assets is “tax exempt use property” within the meaning of Section 1504(b168(h) of the Code or “tax exempt bond financed property” within the meaning of Section 168(g)(5) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.;
(k) Neither the Company nor with respect to Applicable Taxes, (1) Seller has not entered into any Subsidiary shall become obligated in connection agreement or arrangement with the closing any taxing authority that requires Seller to take any action or to refrain from taking any action with respect to a refund, credit, carryforward, or claim, and (2) Seller is not a party to any agreement with any taxing authority regarding a refund, credit, carryforward, or claim that would be terminated or adversely affected as a result of the Merger for transactions contemplated by this Agreement;
(l) the payment Purchased Assets have been properly listed on applicable property Tax rolls, and the Purchased Assets do not contain omitted property; and
(m) none of the Purchased Assets constitutes an equity interest in any amount described in Section 162(m)(1) corporation, partnership, limited liability company, or any other entity, and none of the Purchased Assets is subject to tax partnership reporting requirements under applicable provisions of the Code.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Linn Energy, LLC)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries Transferor has (ior by the Closing will have) duly and timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) with respect to Taxes required to be filed by it on or prior to before the date of this AgreementClosing Date ("Returns"). Except for Taxes set forth on Schedule 3.1.6(a), and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes which are being contested in good faithfaith and by appropriate proceedings, and with respect to which Transferor has Adequate Reserves, the following Taxes have (or by the Closing Date will have) been duly and timely paid: (i) all Taxes shown to be due on the Returns, (ii) all deficiencies and assessments of Taxes of which notice has (or by the Closing Date will have) been received by Transferor that are or may become payable by the Company or chargeable as a lien upon the Business or the Assets, and (iii) all other Taxes due and payable on or before the Closing Date for which neither filing of Returns nor notice of deficiency or assessment is required, if Transferor is or reasonably should be (or by the Closing Date will be or reasonably should be) aware that such Taxes are or may become payable by the Company or chargeable as a lien upon the Business or the Assets. All Taxes required to be withheld by or on behalf of Transferor in connection with amounts paid or owing to any employee, independent contractor, or creditor ("Withholding Taxes") have been withheld, and such withheld taxes have either been duly and timely paid to the proper Governmental Authorities or set aside in accounts for such purposes.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (Except as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Companyset forth on Schedule 3.1.6(b), no such Audit is threatened.
(e) An Audit agreement or other document extending, or having the effect of each United States federal income Tax Return of extending, the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment collection of any Taxes or deficiencies against the Company or any of its SubsidiariesWithholding Taxes, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forcesuch Taxes, has been filed with the IRS or any other Governmental Authority.
(gc) Neither Except for items set forth on Schedule 3.1.6(c) , with respect to which Transferor has Adequate Reserves, (i) there are no Taxes or Withholding Taxes asserted in writing by any Governmental Authority to be due from Transferor and (ii) no issue has been raised in writing by any Governmental Authority in the Company course of any audit with respect to Taxes or Withholding Taxes. Except as set forth on Schedule 3.1.6(c), no Taxes and no Withholding Taxes are currently under audit by any Governmental Authority. Except for items set forth on Schedule 3.1.6(c), with respect to which Transferor has Adequate Reserves, neither the IRS nor any of its Subsidiaries other Governmental Authority is a party tonow asserting or, or is bound by, any agreement, arrangement or policy relating to the allocationKnowledge of Transferor, indemnification threatening to assert against Transferor any deficiency or sharing claim for additional Taxes or any adjustment or Taxes that would, if paid by the Company, have a Material Adverse Effect, and there is no reasonable basis for any such assertion of Taxeswhich Transferor is or reasonably should be aware.
(hd) The Company, Except as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Codeset forth on Schedule 3.1.6(d), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company there is the common parent.
(i) With respect to completed pay periodsno litigation or administrative appeal pending or, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax AuthorityKnowledge of Transferor, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter threatened against or relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated Transferor in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the CodeTaxes.
Appears in 2 contracts
Sources: Capitalization Agreement (Genlyte Group Inc), Capitalization Agreement (Thomas Industries Inc)
Taxes. Except as set forth in Section 3.16 3.6 of the Company Disclosure ScheduleLetter:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed by it on or prior the Company have been properly filed (taking into account applicable extensions of time to the date of this Agreementfile), and each all such Tax Return is correct Returns (including information provided therewith or with respect thereto) are accurate and complete in all material respects respects. All Taxes due and owing by the Company (iiwhether or not reflected as due on such Tax Returns) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has have been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithtimely paid.
(b) There are no Tax claims, audits or proceedings by any Taxing Authority currently being conducted, pending or, to the Company’s Knowledge, threatened in writing in connection with any Taxes due from the Company. The Company has not received from any Taxing Authority (including jurisdictions where the Company has not filed Tax Returns) any (i) 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, asserted, or assessed by any Taxing Authority against the Company in each case that has not been fully resolved without ongoing liability by the Company. No claim has been made by any Taxing Authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction.
(c) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for (other than statutory Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(cpayable) Neither the Company nor upon any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectthe assets of the Company.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to There are not currently in force any Taxes waivers or Tax Returns of agreements binding upon the Company for the extension of time or statute of limitations within which to file any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or Tax for any of its Subsidiariestaxable period, and no power request for any such waiver or extension is currently pending.
(e) The Company has complied with all applicable Laws relating to the withholding, collection, payment and reporting of attorney applicable Taxes and has properly withheld and paid all Taxes required to either have been withheld and paid in connection with amounts paid or owing to any Person, and all IRS Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed. All sales and use Taxes required to be collected and paid over by the Company have been properly collected and paid over to the relevant Taxing Authority.
(f) The Company is not a party to or bound by any Tax allocation or Tax sharing agreement (other than any such agreement no principal purpose of its Subsidiaries with respect which is related to any Taxes is in forceTaxes).
(g) Neither the The Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(hi) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has not been a member of an affiliated affiliated, consolidated, combined, or unitary group filing a consolidated United States federal for Tax Return purposes (other than a group the affiliated group in which they are currently members and common parent of which the Company is the common parent.
(iCompany) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.and
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of The Holding Companies, the Company Borrower and its the Borrower’s Subsidiaries has (i) duly have filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) U.S. federal and other material tax returns and reports required to be filed by it on or prior to the date of this Agreementthem and all such tax returns are true, and each such Tax Return is correct and complete in all material respects respects. Each of the Holding Companies, the Borrower and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there the Borrower’s Subsidiaries has been timely paid or such provision has been made on its behalf for its sole benefit timely caused to be paid all material Federal and recourse) for the payment ofstate and other taxes, all Taxes for all periods ending on assessments, fees and other governmental charges levied or prior to the date of this Agreementimposed upon them or their properties, income or assets otherwise due and payable, except for those Taxes which are being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due faith by appropriate proceedings diligently conducted and for which adequate reserves have been established provided in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries GAAP. No Lien has made any change in accounting methodsbeen filed, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, and to the knowledge of the CompanyBorrower, no such Audit claim is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996being asserted, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes liability of any Holding Company, the Borrower or any of the Borrower’s Subsidiaries for Taxes. As of the Closing Date, none of Holdco, the Borrower or any Subsidiary is in forcetreated as a corporation for U.S. federal income tax purposes.
(gb) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The CompanyExcept as set forth on Schedule 5.10(b), as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely Closing Date, no U.S. federal or other material tax return is under audit or examination by any Governmental Authority and no notice of such audit or examination or any assertion of any claim for taxes has been received from any Governmental Authority. All amounts required to be withheld have been withheld by the Holding Companies, the Borrower and the Borrower’s Subsidiaries from their respective employees’ wages for all periods in full and complete compliance with the tax, social security and unemployment withholding provisions of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself applicable Law and such Subsidiaries and neither the Company nor any of such Subsidiaries has withholdings have been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawrespective Governmental Authorities.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Taxes. Except as set forth in Section 3.16 the Disclosure Schedule, (i) the Company has timely filed and caused each of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) to timely file all Tax Returns (as hereinafter defined) that any such entity was required to be filed by it on or prior file pursuant to applicable law, except for Tax Returns the date failure of this Agreementwhich to file would not cause a Material Adverse Effect, and each (ii) all such Tax Return is Returns were correct and complete in all material respects respects, (iii) all material Taxes due and owing by the Company and any of the Company Subsidiaries (iiwhether or not shown on any Tax Return) duly paid in full orhave been paid, made (iv) the Historical Financial Statements and the Interim Financial Statements reflect an adequate accruals reserve (other than a reserve for deferred income taxes established to reflect differences between book basis and reserves in its books tax basis of assets and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourseliabilities) for the payment of, all Taxes payable by the Company and the Company Subsidiaries for all taxable periods ending on and portions thereof through the dates of the reference, (v) neither the Company nor any of the Company Subsidiaries has waived any statute of limitations in respect of Taxes or prior agreed to any extension of time with respect to a Tax assessment or deficiency or the collection of Taxes, (vi) to the date Company's knowledge, no deficiencies, adjustments or claims for any Taxes have been proposed, asserted or assessed against the Company or any of this Agreementthe Company Subsidiaries, except for those Taxes being contested in good faith.
(bvii) There there are no Liens Security Interests for Taxes other than for current Taxes not yet due upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither of the Company nor any Subsidiaries, (viii) none of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or the Tax Returns of the Company or any of its the Company Subsidiaries andhave been selected for or are now under audit or examination by any tax authority or other Governmental Entity, and there are no suits, actions, proceedings or investigations pending or, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996Company Subsidiaries, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies threatened against the Company or any of its Subsidiariesthe Company Subsidiaries with respect to any Taxes, and no power of attorney applicable (ix) all material Taxes that are required by law to either be withheld or collected by the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party tohave been duly withheld and collected and, or is bound by, any agreement, arrangement or policy relating to the allocationextent required by applicable law, indemnification have been paid to the proper tax authority or sharing of Taxes.
other Governmental Entity or properly segregated or deposited, (hx) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such the Company Subsidiaries has been a member of an affiliated group filing a consolidated United States federal income Tax Return or has liability for the Taxes of any person or entity (other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its the Company Subsidiaries.
) under Section 1.1502-6 of the Treasury Regulations or any similar provision of state, local or foreign law, as transferee or successor, by contract or otherwise, and (kxi) Neither neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the Company Subsidiaries is party to any Tax sharing or other agreement or arrangement that will require any payment of any amount described in Section 162(m)(1) of the Codewith respect to Taxes.
Appears in 2 contracts
Sources: Recapitalization Agreement (Darling International Inc), Recapitalization Agreement (Bank One Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(ai) Each of the Company CAX and its Subsidiaries has (i) duly timely filed (or there have been has had filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) material tax returns and reports required to be filed by it and all such returns and reports are true, complete and correct in all material respects, or requests for extensions to file such returns or reports have been timely filed, granted and have not expired. CAX and each of its Subsidiaries has timely paid (or CAX has paid on or its behalf) all taxes (as defined herein) shown as due on such returns and required to be paid prior to the date of this Agreement, hereof and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, has made adequate accruals and reserves in its books and records provision in accordance with GAAP for all taxes owed or accrued through the date hereof, and the most recent financial statements contained in the CAX Filed SEC Documents reflect an adequate reserve in accordance with full provision GAAP for all taxes payable by CAX and its Subsidiaries for all taxable periods and portions thereof accrued through the date of such financial statements.
(ii) No deficiencies for any taxes with respect to which CAX or there any of its Subsidiaries has received a notice in writing have been paid proposed, asserted or assessed against CAX or any of its Subsidiaries. Except as indicated in Schedule 3.2(k) of the CAX Disclosure Schedule, CAX has not extended the statute of limitations for the assessment or collection of taxes with respect to any taxable year and no requests for such provision extension are pending. No written claim has been made on its behalf for its sole benefit and recourse) for by a taxing authority in a jurisdiction where CAX or a Subsidiary of CAX does not file tax returns that CAX or such Subsidiary, as the payment ofcase may be, all Taxes for all periods ending on is or prior may be subject to the date of this Agreement, except for those Taxes being contested in good faith.
(b) taxation by that jurisdiction. There are no Liens for Taxes upon on any property or of the assets of CAX or its Subsidiaries that arose in connection with any failure or alleged failure to pay any taxes. For taxable years ending December 31, 1995 and thereafter, the Company or United States federal income tax returns of CAX and each CAX Subsidiary have not been audited by any Subsidiary thereof, except governmental authority responsible for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) tax matters. Neither the Company CAX nor any of its Subsidiaries has made received written notice of any change in accounting methodsaudit of any tax return filed by CAX or such Subsidiary, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority no such audit is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, currently being conducted and to the knowledge of the Company, no such Audit is threatened.
(e) An Audit senior management of each United States federal income Tax Return of the Company or CAX neither CAX nor any of its Subsidiaries has been completed by the applicable Tax Authorities (notified that any such audit is contemplated or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) pending. Neither the Company CAX nor any of its Subsidiaries is a party tohas entered into any closing agreement pursuant to Section 7121 of the Code. For taxable years ending December 31, 1995 and thereafter, CAX has incurred no material liability for taxes under Sections 857(b), 857(f), 860(c) or 4981 of the Code, or is bound byIRS Notice 88-19, and neither CAX nor any agreementCAX Subsidiary has incurred any liability for taxes other than in the ordinary course of business. Neither CAX nor any CAX Subsidiary holds any asset the disposition of which would be subject to Section 1374 of the Code as announced in IRS Notice 88-19. To CAX's knowledge, arrangement no event has occurred, and no condition or policy relating circumstance exists, which could reasonably be expected to result in any material tax described in the allocation, indemnification preceding sentence being imposed upon CAX or sharing of Taxesany CAX Subsidiary.
(hiii) The CompanyNeither CAX nor any of its Subsidiaries has taken any action or knows of any fact, agreement, plan or other circumstance that is likely to prevent the Merger from qualifying as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (a reorganization within the meaning of Section 1504(b368(a) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(iiv) With respect to completed pay periodsAs used in this Agreement, the Company "taxes" shall include all (x) Federal, state, local or foreign income, property, sales, excise and each of its Subsidiaries has withheld from its employeesother taxes or similar governmental charges, independent contractorsincluding any interest, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force penalties or additions with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
thereto, (ky) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger liabilities for the payment of any amount amounts of the type described in Section 162(m)(1(x) as a result of being a member of an affiliated, consolidated, combined or unitary group, and (z) liabilities for the payment of any amounts as a result of being party to any tax sharing agreement or as a result of any express or implied obligation to indemnify any other person with respect to the payment of any amounts of the Codetype described in clause (x) or (y).
Appears in 2 contracts
Sources: Merger Agreement (Asset Investors Corp), Merger Agreement (Commercial Assets Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (Except in each case with respect to matters for which adequate reserves or there accruals have been filed on its behalf) established in accordance with GAAP in the appropriate Tax Authorities Most Recent Balance Sheet as adjusted for the passage of time in the ordinary course of business and consistent with past practice, (as hereinafter definedi) all material Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to the date Company or any of this Agreementthe Company Subsidiaries have been timely filed and such Tax Returns are true, complete, and each such Tax Return is correct and complete in all material respects and respects, (ii) duly paid in full orall material Taxes due and owing by the Company or any of the Company Subsidiaries have been timely paid, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or iii) there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes other than Permitted Liens upon any property or of the assets of the Company or any of the Company Subsidiaries, and (iv) the Company and each Company Subsidiary thereofhas properly and timely withheld, collected and deposited all material Taxes that are required to be withheld, collected and deposited in accordance with applicable Law.
(b) The material Tax obligations of the Company and the Company Subsidiaries as of the date of the Most Recent Balance Sheet are reserved for in accordance with GAAP in the Most Recent Balance Sheet. Since the date of the Most Recent Balance Sheet, neither the Company nor any of the Company Subsidiaries has incurred any material liability for Taxes as a result of transactions entered into outside the ordinary course of business consistent with past practice.
(c) No deficiencies for material Taxes against any of the Company and the Company Subsidiaries have been claimed, proposed or assessed in writing by any Governmental Authority, except for Liens for Taxes not yet due deficiencies that have been paid or otherwise resolved or that are being contested in good faith and for which adequate reserves have been established in accordance with GAAP GAAP. Except as set forth in Section 4.15(c) of the Company Disclosure Schedule, there are no pending or, to the Knowledge of the Company, threatened, audits, assessments or other actions for or relating to any material liability in respect of Taxes of the Company or any Company Subsidiary. The U.S. federal income Tax Returns of the Company and the Company Subsidiaries through the taxable year ended May 30, 2004 have been examined and closed or are Tax Returns with full provision made respect to which the period for the payment thereofassessment has expired.
(cd) Neither the Company nor any of its the Company Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority sharing, allocation, or signed indemnification agreement (other than such an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to exclusively between or among any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to and the knowledge of the Company, no such Audit is threatenedCompany Subsidiaries).
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its the Company Subsidiaries is has any material liability for the Taxes of any Person (other than the Company or any of the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law or by reason of being a party totransferee or successor of such Person.
(f) Neither the Company nor any Company Subsidiary (i) has any unrecaptured overall foreign loss within the meaning of Section 904(f) of the Code or (ii) has participated in or cooperated with an international boycott within the meaning of Section 999 of the Code.
(g) From and after the Effective Time, neither the Company nor any Company Subsidiary will be required to include any material item of income in, or is bound byexclude any material item of deduction from, taxable income for any agreementtaxable period (or portion thereof) ending after the Effective Time as a result of any (i) adjustment pursuant to Section 481(a) of the Code or any similar provision of state, arrangement local or policy relating foreign Law by reason of a change in accounting method occurring on or prior to the allocationEffective Time, indemnification (ii) “closing agreement” as described in Section 7121 of the Code (or sharing any corresponding or similar provision of Taxesstate, local or foreign Tax Law) entered into prior to the Effective Time or (iii) installment sale or open transaction occurring on or prior to the Effective Time.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of Neither the Company and the Subsidiaries that are "includable corporations" (nor any Company Subsidiary has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1504(b) of the Code1.6011-4(b)(2), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, Neither the Company nor any Company Subsidiary is a party to or bound by any advance pricing agreement, material closing agreement or other material agreement or ruling relating to Taxes with any Tax authority.
(j) Neither the Company nor any Company Subsidiary has distributed the stock of any corporation in a transaction intended to satisfy the requirements of Section 355 of the Code.
(k) The Company and each of its the Company Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts are in compliance in all material respects with all terms and conditions of any material Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect exemption, Tax holiday, or other Tax reduction agreement or Tax Order that applies to any matter relating of them, and no Tax exemption, Tax holiday, or Tax Order that applies to Taxes that could affect any of the Company or any of its Subsidiaries.
(k) Neither and the Company nor any Subsidiary shall become obligated in connection with Subsidiaries will be adversely affected by the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the CodeTransactions.
Appears in 2 contracts
Sources: Merger Agreement (National Semiconductor Corp), Merger Agreement (Texas Instruments Inc)
Taxes. Except as set forth in on Section 3.16 3.14 of the Company Disclosure Schedule:Letter.
(a) Each all Tax Returns required to be filed by or with respect to the Company and each Subsidiary through the date hereof have been timely filed and all such Tax Returns were complete and accurate in all material respects. All Taxes owed by any of the Company and the Subsidiaries (whether or not shown on any Tax Return) have been paid other than any Taxes for which adequate reserves under GAAP have been recorded in the Company Financial Statements;
(b) the Company and the Subsidiaries have timely paid or will timely pay or properly accrue on their books (or there have been or will be timely paid on their behalf) all Taxes owed by the Company and the Subsidiaries (whether or not shown on any Tax Return) for all taxable periods for which Tax Returns are required to be filed (taking into account any extensions) on or before the Closing Date;
(c) the Company and the Subsidiaries have timely paid (or there have been timely paid on their behalf) all required current estimated Tax payments in amounts sufficient to avoid interest charges and underpayment penalties;
(d) the Company and the Subsidiaries have given or otherwise made available to Purchaser correct and complete copies of all Tax Returns, examination reports and statements of deficiencies assessed against or agreed to by any of the Company and its Subsidiaries has for periods ending, or transactions consummated, after December 31, 1997;
(ie) duly filed (there are no outstanding agreements extending or there have been filed on its behalf) with waiving the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) required statutory period of limitation applicable to be filed by it on any claim for, or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) period for the payment collection or assessment or reassessment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of due from the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, taxable period and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force or has been requested with respect to any matter relating to Taxes that could affect the Company or the Subsidiaries;
(f) (A) no claim, action, suit, investigation, audit, or other proceeding by any Governmental Authority is pending or, to the Knowledge of the Company, threatened with respect to any Taxes due from or with respect to the Company or any Subsidiary; (B) to the Knowledge of the Company, no claim for Taxes has been proposed, asserted, or assessed against the Company or any of the Subsidiaries that has not been fully paid or properly accrued on its Subsidiaries.books; and (C) to the Knowledge of the Company, no claim has been made by any Governmental Authority in a jurisdiction where any of the Company or any of the Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction;
(kg) Neither there are no Liens for Taxes upon the assets or properties of the Company or any of the Subsidiaries, except for statutory Liens for current Taxes not yet due;
(h) neither the Company nor any Subsidiary shall become obligated is or has been a member of any partnership or joint venture (or entity treated similarly for Tax purposes) or the holder of a beneficial interest in any trust, in each case for any taxable period for which the applicable statute of limitations has not expired;
(i) neither the Company nor any Subsidiary is a party to any agreement relating to the sharing or allocation of, or indemnification agreement with respect to, Taxes, or any similar contract or arrangement, and neither the Company nor any Subsidiary has made any payment under or pursuant to any such agreement, contract, or arrangement since December 31, 1997;
(j) neither the Company nor any Subsidiary is or has been doing business in, is or has been engaged in a trade or business in, or has business in force in any jurisdiction in which it has not filed all required Tax Returns and the failure to file such Tax Returns could reasonably be expected to have a Company Material Adverse Effect;
(k) neither the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return;
(l) each of the Company and its Subsidiaries 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;
(m) neither the closing Company nor any of its Subsidiaries has (A) filed a consent under Code section 341(f) concerning collapsible corporations, (B) made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code section 280G, (C) been a United States real property holding corporation within the meaning of Code section 897(c)(2) during the applicable period specified in Code section 897(c)(1)(A)(ii);
(n) each of the Merger Company and its Subsidiaries 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 Code section 6662;
(o) neither the Company nor any of its Subsidiaries (A) has been a member of an affiliated group (within the meaning of Code section 1504(a)(1)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (B) has any Liability for the payment Taxes of any amount Person (other than any of the Company and its Subsidiaries) under Treasury Regulation ss.1.1502-6 under Code section 1502 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise;
(p) the unpaid Taxes of the Company and its Subsidiaries (A) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (B) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns; and
(q) neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code section 481(c) (or any corresponding or similar provision of state, local or foreign income Tax law); (B) "closing agreement" as described in Section 162(m)(1Code section 7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (C) deferred intercompany gain or any excess loss account described in Treasury Regulations under Code section 1502 (or any corresponding or similar provision of state, local or foreign income Tax law); (D) installment sale or open transaction disposition made on or prior to the CodeClosing Date; or (E) prepaid amount received on or prior to the Closing Date.
Appears in 2 contracts
Sources: Merger Agreement (Net2phone Inc), Merger Agreement (Netspeak Corp)
Taxes. (a) Except as set forth in Section 3.16 4.14(a) of the Company Disclosure Schedule:
: (ai) Each of the Company and each of its Subsidiaries has timely filed all income Tax Returns and all other material Tax Returns required to be filed by it, and each such Tax Return has been prepared in substantial compliance with all applicable laws and regulations and all such Tax Returns are true and correct; (iii) duly filed the Company and each of its Subsidiaries has paid (or there have been filed the Company has paid on behalf of its behalf) with the appropriate Tax Authorities (as hereinafter definedSubsidiaries) all Tax Returns material Taxes (as hereinafter defined) required to be filed paid in respect of the periods covered by it on or prior to such returns and has made adequate provision in the date Company's financial statements for payment of this Agreement, and each such Tax Return is correct and complete in all material respects Taxes that have not been paid, whether or not shown as due and (ii) duly paid payable on any Tax Return, in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (respect of all taxable periods or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods portions thereof ending on or prior to before the date of this Agreementhereof, except for those Taxes being contested in good faith.
subject to quarterly and year-end adjustments; and (biii) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither neither the Company nor any of its Subsidiaries has made incurred any change material liability for Taxes subsequent to the date of the most recent financial statements contained in accounting methods, received a ruling from any Tax Authority the SEC Reports other than in the ordinary course of the Company's or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectsuch Subsidiary's business.
(db) No Audit (Except as hereinafter definedset forth in Section 4.14(b) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Disclosure Schedule or any of its Subsidiaries and, to the knowledge of the Company, which are not material: (i) no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed is under audit or examination by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996any taxing authority, and no adjustments were asserted as a result written notice of such Audits an audit or examination or any other audit or examination with respect to Taxes has been received by the Company or any of its Subsidiaries; (ii) each deficiency resulting from any audit or examination relating to Taxes by any taxing authority has been paid, except for deficiencies currently being contested in good faith and for which adequate reserves, as applicable, have not been finally resolved and fully paid.
established in the Company's financial statements in accordance with United States generally accepted accounting principles; (fiii) There there are no agreements, consents or waivers to extend Liens for Taxes upon the statutory period assets of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, except Liens relating to current Taxes not yet due and no power of attorney applicable payable or otherwise being contested in good faith as to either which appropriate reserves have been established in the Company's financial statements in accordance with United States generally accepted accounting principles; (iv) all Taxes which the Company or any of its Subsidiaries with respect are required by law to any Taxes is in force.
withhold or to collect for payment have been duly withheld and collected; (gv) Neither none of the Company nor or any of its Subsidiaries has consented to extend the time in which any Tax may be assessed or collected by any taxing authority; and (vi) no written claim has been made by any taxing authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating may be subject to the allocation, indemnification or sharing of Taxestaxation in that jurisdiction.
(hc) The Company, Except as the common parent of an affiliated group of corporations (as defined set forth in Section 1504 4.14(c) of the CodeCompany Disclosure Schedule, there is no Contract or other arrangement, plan or agreement by or with the Company or any of its Subsidiaries covering any person that, individually or collectively, could give rise to the payment of any amount by the Company or any of its Subsidiaries that would not be deductible by the Company or such Subsidiary by reason of Sections 280G or 162(m) consisting solely of the Code (or any corresponding provision of state, local or foreign law).
(d) Except as set forth in Section 4.14(d) of the Company Disclosure Schedule, each of the Company and its Subsidiaries has made available to Acquisition Corp. and Parent true, correct and complete copies of all income Tax Returns, and all examination reports and statements of deficiencies assessed against or agreed to by any of the Company or any of its Subsidiaries that are "includable corporations" have been filed by or submitted to any of the Company or any of its Subsidiaries for all taxable years not barred by the statute of limitations.
(within the meaning of e) Except as set forth in Section 1504(b4.14(e) of the Code)Company Disclosure Schedule, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf none of itself and such Subsidiaries and neither the Company nor or any of such its Subsidiaries (i) has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which was the Company), (ii) is a party to or bound by any Tax allocation or Tax sharing agreement with any persons or entity other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each its Subsidiaries, (iii) has any liability for the Taxes of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions any Person (other than any of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
) under Treas. Reg. Section 1.1502-6 (kor any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise or (iv) Neither has any liability for the Taxes of any Person other than the Company, the Subsidiaries of the Company nor any Subsidiary shall become obligated or in connection with the closing of the Merger for the payment acquisition, directly or indirectly, of any amount described Person acquired by the Company or any of its Subsidiaries, other than under leases relating to the Leased Real Property.
(f) Except as set forth in Section 162(m)(14.14(f) of the CodeCompany Disclosure Schedule, none of the Company or any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision of state, local or foreign income Tax Law); (ii) "closing agreement" as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale made prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
Appears in 2 contracts
Sources: Acquisition Agreement (Goodys Family Clothing Inc /Tn), Acquisition Agreement (Goodys Family Clothing Inc /Tn)
Taxes. (a) Except as set forth in Section 3.16 4.14(a) of the Company Disclosure Schedule:
: (ai) Each of the Company and each of its Subsidiaries has timely filed all income Tax Returns and all other material Tax Returns required to be filed by it, and each such Tax Return has been prepared in substantial compliance with all applicable laws and regulations and all such Tax Returns are true and correct; (iii) duly filed the Company and each of its Subsidiaries has paid (or there have been filed the Company has paid on behalf of its behalf) with the appropriate Tax Authorities (as hereinafter definedSubsidiaries) all Tax Returns material Taxes (as hereinafter defined) required to be filed paid in respect of the periods covered by it on or prior to such returns and has made adequate provision in the date Company's financial statements for payment of this Agreement, and each such Tax Return is correct and complete in all material respects Taxes that have not been paid, whether or not shown as due and (ii) duly paid payable on any Tax Return, in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (respect of all taxable periods or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods portions thereof ending on or prior to before the date of this Agreementhereof, except for those Taxes being contested in good faith.
subject to quarterly and year-end adjustments; and (biii) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither neither the Company nor any of its Subsidiaries has made incurred any change material liability for Taxes subsequent to the date of the most recent financial statements contained in accounting methods, received a ruling from any Tax Authority the SEC Reports other than in the ordinary course of the Company's or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectsuch Subsidiary's business.
(db) No Audit (Except as hereinafter definedset forth in Section 4.14(b) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Disclosure Schedule or any of its Subsidiaries and, to the knowledge of the Company, which are not material: (i) no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed is under audit or examination by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996any taxing authority, and no adjustments were asserted as a result written notice of such Audits an audit or examination or any other audit or examination with respect to Taxes has been received by the Company or any of its Subsidiaries; (ii) each deficiency resulting from any audit or examination relating to Taxes by any taxing authority has been paid, except for deficiencies currently being contested in good faith and for which adequate reserves, as applicable, have not been finally resolved and fully paid.
established in the Company's financial statements in accordance with United States generally accepted accounting principles; (fiii) There there are no agreements, consents or waivers to extend Liens for Taxes upon the statutory period assets of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, except Liens relating to current Taxes not yet due and no power of attorney applicable payable or otherwise being contested in good faith as to either which appropriate reserves have been established in the Company's financial statements in accordance with United States generally accepted accounting principles; (iv) all Taxes which the Company or any of its Subsidiaries with respect are required by law to any Taxes is in force.
withhold or to collect for payment have been duly withheld and collected; (gv) Neither none of the Company nor or any of its Subsidiaries has consented to extend the time in which any Tax may be assessed or collected by any taxing authority; and (vi) no written claim has been made by any taxing authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating may be subject to the allocation, indemnification or sharing of Taxestaxation in that jurisdiction.
(hc) The Company, Except as the common parent of an affiliated group of corporations (as defined set forth in Section 1504 4.14(c) of the CodeCompany Disclosure Schedule, there is no Contract or other arrangement, plan or agreement by or with the Company or any of its Subsidiaries covering any person that, individually or collectively, could give rise to the payment of any amount by the Company or any of its Subsidiaries that would not be deductible by the Company or such Subsidiary by reason of Sections 280G or 162(m) consisting solely of the Code (or any corresponding provision of state, local or foreign law).
(d) Except as set forth in Section 4.14(d) of the Company Disclosure Schedule, each of the Company and its Subsidiaries has made available to Acquisition Corp. and Parent true, correct and complete copies of all income Tax Returns, and all examination reports and statements of deficiencies assessed against or agreed to by any of the Company or any of its Subsidiaries that are "includable corporations" have been filed by or submitted to any of the Company or any of its Subsidiaries for all taxable years not barred by the statute of limitations.
(within the meaning of e) Except as set forth in Section 1504(b4.14(e) of the Code)Company Disclosure Schedule, has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf none of itself and such Subsidiaries and neither the Company nor or any of such its Subsidiaries (i) has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which was the Company), (ii) is a party to or bound by any Tax allocation or Tax sharing agreement with any persons or entity other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each its Subsidiaries, (iii) has any liability for the Taxes of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions any Person (other than any of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
) under Treas. Reg. ss. 1.1502-6 (kor any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise or (iv) Neither has any liability for the Taxes of any Person other than the Company, the Subsidiaries of the Company nor any Subsidiary shall become obligated or in connection with the closing acquisition, directly or indirectly, of any Person acquired by the Company or any of its Subsidiaries, other than under leases relating to the Leased Real Property.
(f) Except as set forth in Section 4.14(f) of the Merger Company Disclosure Schedule, none of the Company or any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the payment Closing Date as a result of any amount (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision of state, local or foreign income Tax Law); (ii) "closing agreement" as described in Code ss. 7121 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Code ss. 1502 (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale made prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(g) None of the Company or any of its Subsidiaries has been a U.S. real property holding corporation within the meaning of Section 162(m)(1897(c)(2) of the Code during the applicable period specified in Section (897)(c)(1)(A)(ii) of the Code.
(h) Except as set forth in Section 4.14(h) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries has distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code Sections 355 or 361.
(i) As used in this Section 4.14, the terms (i) "Tax" (and, with correlative meaning, "Taxes") means: (A) any federal, state, local or foreign income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value added, transfer, stamp, environmental or other tax, or any other tax of any kind whatsoever, whether disputed or not, together with any interest or penalty or addition to tax imposed by any Governmental Authority and (B) any liability of the Company or any of its Subsidiaries for payments of a type described in clause (A) as a result of (I) any obligation of the Company or any of its Subsidiaries under any tax sharing agreement or tax indemnity agreement or (II) the Company or any of its Subsidiaries being a member of an affiliated group (other than one of which the Company is the parent); and (ii) "Tax Return" means any report, return or other information or document required to be supplied to or filed with a taxing authority in connection with Taxes.
Appears in 2 contracts
Sources: Acquisition Agreement (GMM Capital LLC), Acquisition Agreement (GMM Capital LLC)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedulehas not had and would not reasonably be expected to have a Parent Material Adverse Effect:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there All Tax Returns required by applicable Law to have been filed on its behalf) with the appropriate Tax Authorities relevant Taxing Authority by, or on behalf of, Parent or any of its Subsidiaries have been filed in a timely manner (as hereinafter definedtaking into account any valid extension) in accordance with all applicable Laws, and all such Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreement, are true and each such Tax Return is correct and complete in all material respects and complete;
(ii) duly Parent and each of its Subsidiaries have paid (or have had paid on their behalf) all Taxes due and owing, and Parent’s most recent financial statements included in full or, made the Filed Parent SEC Documents reflect an adequate accruals and reserves in its books and records accrual in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes payable by Parent and its Subsidiaries for all taxable periods ending on or prior to and portions thereof accrued through the date of this Agreement, except for those Taxes being contested in good faith.such financial statements;
(biii) There are no Liens for Taxes upon on any property or of the assets of the Company Parent or any Subsidiary thereof, except for Liens of its Subsidiaries other than for Taxes not yet due and for which adequate reserves payable;
(iv) Parent and its Subsidiaries have been established in accordance complied with GAAP with full provision made for all applicable Laws relating to the payment thereof.and withholding of Taxes;
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(dv) No Audit (as hereinafter defined) by written notice of a Tax Authority is presently claim, audit, action, suit, proceeding or investigation now pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andor, to the knowledge of the CompanyParent’s Knowledge, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company threatened against or with respect to Parent or any of its Subsidiaries has been completed received with regard to any United States Federal income Taxes, any income Taxes imposed by the applicable Netherlands or any Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for Returns with respect to any such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.Taxes;
(fvi) There are no agreementsNo written notice of a claim of pending investigation has been received from any state, consents local or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company other jurisdiction with which Parent or any of its Subsidiaries with respect currently does not file Tax Returns, alleging that Parent or any of its Subsidiaries has a duty to any file Tax Returns and pay Taxes or is in force.otherwise subject to the Taxing Authority of such jurisdiction;
(gvii) During the two year period prior to the Spin-Off, Parent had not engaged in discussions with the Company and/or its Affiliates with regard to a potential acquisition of the Company by Parent and/or its Affiliates; and
(viii) Neither the Company Parent nor any of its Subsidiaries is a party tohas entered into any transactions that are or would be part of any “listed transaction” under Sections 6011, 6111, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 6112 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" Code (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiariessimilar provision under any state or local law).
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Trane Inc.), Merger Agreement (Ingersoll Rand Co LTD)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries The LLC has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter definedcaused to be filed) all Tax Returns (as hereinafter defined) federal, state, local and foreign tax returns, reports and information statements required to be filed by it on or prior to the date of this Agreementit, which returns, reports and each such Tax Return is statements are true, correct and complete in all material respects respects, and paid all taxes required to be paid by it as shown on such returns, reports and statements. All taxes required to be paid for all Return Periods have either been paid or fully accrued on the books of the LLC. The LLC has fully accrued on the LLC Financial Statements all of its unpaid taxes in respect of all periods (iior the portion of any such periods) duly paid in full orsubsequent to the Return Periods, made adequate accruals and reserves in its will accrue on the Final Pro Forma Closing Balance Sheet all unpaid taxes with respect to any period ending after September 30, 1999, and through the Closing Date. The books and records in accordance with GAAP with full provision (of the LLC have been kept on a tax basis. No deficiencies or there has adjustments for any tax have been paid claimed, proposed or such provision has been made on its behalf for its sole benefit and recourse) for the payment ofassessed, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets best of the Company or any Subsidiary thereofLLC's knowledge, except for Liens for Taxes not yet due and threatened. The LLC Disclosure Schedule accurately sets forth the years for which adequate reserves the LLC's federal and state income tax returns, respectively, have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor audited and any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries andyears which, to the knowledge of the CompanyLLC, no such Audit are the subject of a pending audit by the Internal Revenue Service and the applicable state agencies. Except as so disclosed, the LLC is threatened.
(e) An Audit of each United States federal income Tax Return not subject to any pending or, to the best of the Company LLC's knowledge, threatened, tax audit or examination and the LLC has not waived any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes statute of limitation for with respect to the assessment of Taxes for such periods have expired) for any tax which waiver remains in effect. The LLC has provided OnHealth true and correct copies of all periods through tax returns, information, statements, reports, work papers and including 1996, and no adjustments were asserted as a result other tax data reasonably requested by OnHealth. No consent or agreement has been made under Section 341 of such Audits which have not been finally resolved and fully paid.
(f) the Code by or on behalf of the LLC or any predecessor thereof. There are no agreements, consents or waivers to extend liens for taxes upon the statutory period assets of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party toLLC except for taxes that are not yet payable. The LLC has not participated in, or is bound bycooperated with, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (international boycott within the meaning of Section 1504(b999 of the Code. The LLC is not required to include in income any adjustment pursuant to Section 481(a) of the Code (or similar provisions of other law or regulations) in its current or in any future taxable period, by reason of a change in accounting method; nor does the LLC have any knowledge that the IRS (or other taxing authority) has proposed; or is considering, any such change in accounting method. The LLC is not a party to any agreement, contract, or arrangement that would result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code (or, in the case of any such agreement or arrangement to which it may be a party, shareholder approval of any such payments shall be obtained in accordance with Section 280G). None of the assets of the LLC is property that is required to be treated as owned by any other person pursuant to the "safe harbor lease" provisions of former Section 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 and none of the assets of the LLC is "tax exempt use property" within the meaning of Section 168(h) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing . None of the Merger for assets of the payment of LLC secures any amount described in debt the interest on which is tax exempt under Section 162(m)(1) 103 of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Onhealth Network Co), Agreement and Plan of Reorganization (Onhealth Network Co)
Taxes. Except as set forth in Section 3.16 3.1(i) of the Company Sellers’ Disclosure ScheduleLetter:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All material Tax Returns (as hereinafter defined) required to be filed by it on or prior with respect to the date of this Agreement, Acquired Companies and each the Acquired Company Subsidiaries with any relevant Taxing Authority have been duly and timely filed in the manner prescribed by Law (taking into account all valid extensions) and such Tax Return is Returns were true, correct and complete in all material respects when filed. All Taxes shown as due and payable on such returns, reports and estimates or otherwise due have been paid in full or have been duly provided for on the SAP Statements.
(ii) duly paid (A) No written notice of deficiencies or reassessments for any Taxes have been proposed, asserted or assessed against the Acquired Companies or the Acquired Company Subsidiaries by any Taxing Authority which has not been resolved in full oror duly provided for on the SAP Statements; (B) there are no pending, made adequate accruals current or proposed in writing audits, suits, proceedings, investigations, claims or administrative proceedings for or relating to any material liability in respect of any such Taxes; and reserves in its books (C) no tax ruling has been obtained and records in accordance with GAAP with full provision no closing agreement pursuant to Section 7121 of the Code (or there any similar provision of state, local or foreign Law) has been paid entered into by or with respect to any of the Acquired Companies or the Acquired Company Subsidiaries which will continue to have a material effect with respect to the Taxes of such provision Acquired Company or Acquired Company Subsidiary after the Closing Date.
(iii) None of the Acquired Companies or Acquired Company Subsidiaries has been made on its behalf executed or filed any agreement or other document extending the period for its sole benefit assessment, reassessment or collection of any amounts of Taxes that is currently in-force and recourse) for will continue in-force after the payment ofClosing Date, all Taxes for all periods ending on and no power of attorney granted by an Acquired Company or Acquired Company Subsidiary prior to the date of this Agreement, except for those Taxes being contested Closing Date shall remain in good faitheffect after the Closing Date.
(biv) There are no Liens for any Taxes upon any property or the assets of the Acquired Companies or the Acquired Company Subsidiaries, other than (A) Permitted Liens or any Subsidiary thereof, except for (B) Liens for Taxes not yet due which are being contested in good faith by appropriate proceedings and for which an adequate reserves have reserve has been established in accordance with GAAP with full provision made for the payment thereofSAP.
(cv) Neither The Acquired Companies and Acquired Company Subsidiaries have complied in all material respects with all applicable Laws relating to information reporting and the Company nor any payment and withholding of its Subsidiaries material amount of Taxes and each of them has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to withheld and paid all such material Taxes reasonably likely required to have a Company Material Adverse Effectbeen withheld and paid in connection with amounts paid or owing to any Employee, independent contractor, creditor, stockholder, foreign person, policyholder, beneficiary or other third party.
(dvi) No Audit written claim has been made in the past three (as hereinafter defined3) years by a Tax Authority is presently pending with regard to any Taxes Governmental Entity in a jurisdiction where an Acquired Company or Acquired Company Subsidiary does not file Tax Returns of the that such Acquired Company or any Acquired Company Subsidiary is or may be subject to a material amount of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedTax in that jurisdiction.
(evii) An Audit No Acquired Company or Acquired Company Subsidiary is (A) obligated to make any payments or (B) a party to any agreement, contract or arrangement that under certain circumstances could obligate it to make any payments that could result, separately or in the aggregate, in the payment of any payments that are subject to Section 280G of the Code solely as a result of the transactions contemplated by this Agreement.
(viii) For the taxable period ending on the Closing Date, each of the Insurance Companies qualifies as a “life insurance company” for purposes of the Code and is subject to taxation under Subchapter L of the Code.
(ix) There is no policyholder surplus account balance (as defined in Section 815 of the Code) as of December 31, 2004 for any of the Insurance Companies.
(x) The reserves maintained by the Insurance Companies have, for Tax purposes, been computed and maintained in all material respects in the manner required under Sections 807, 832 and 846 of the Code, as applicable.
(xi) None of the Insurance Companies will join in the filing of a consolidated federal income tax return for 2005 or for any Tax period in 2006 through the Closing Date.
(xii) No Acquired Company or Acquired Company Subsidiary has participated, within the meaning of Treasury Regulation Section 1.6011-4(c), or has been a “material advisor” or “promoter” (as those terms are defined in Sections 6111 and 6112 of the Code) in any “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations other than any “listed transaction” with respect to the Acquired Companies or the Acquired Company Subsidiaries that will be reported on the relevant United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through taxable years that ended on December 31, 2004 and including 1996December 31, and no adjustments were asserted 2005. Except as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend provided in the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries previous sentence with respect to any Taxes is in force.
(g) Neither “listed transactions,” to the Knowledge of Sellers, no Acquired Company nor any or Acquired Company Subsidiary has participated, within the meaning of its Subsidiaries is a party toTreasury Regulation Section 1.6011-4(c), or is bound by, any agreement, arrangement has been a “material advisor” or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations “promoter” (as those terms are defined in Section 1504 Sections 6111 and 6112 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" in (A) any “reportable transaction” within the meaning of Section 1504(b) 6011 of the Code), has filed since 1994 a consolidated return for Code other than any “reportable transaction” with respect to the Acquired Companies or the Acquired Company Subsidiaries that will be reported on the relevant United States federal income Tax purposes Return for the taxable years that ended on behalf December 31, 2004 and December 31, 2005; (B) any “confidential corporate tax shelter” within the meaning of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing Section 6111 of the Merger for Code; or (C) any “potentially abusive tax shelter” within the payment meaning of any amount described in Section 162(m)(1) 6112 of the Code.
(xiii) [Reserved.]
(xiv) Sellers (and, to the extent necessary, Parent and any necessary Affiliates of Parent) are eligible to join with Buyer in making the election provided for by Section 338(h)(10) of the Code with respect to each of the Section 338(h)(10) Companies; provided, however, that this representation shall not apply to ineligibility to make the Section 338(h)(10) Elections: (A) caused by a change in Law or any interpretation thereof as such Law existed as of the date hereof; (B) caused by any action by, for or on behalf of Buyer (1) taken or caused to have been taken that should not have been taken or (2) not taken that should have been taken; or (C) otherwise caused by Buyer or any Affiliate thereof after the Closing. Notwithstanding any provision in this Agreement to the contrary, except to the extent Section 3.1(h) contains specific references to the Code, the only representations and warranties made by Sellers with respect to matters relating to Taxes (including without limitation, all matters relating to whether any annuities or insurance products sold, issued, reinsured or marketed by or on behalf of the Insurance Companies comply with applicable Tax Law) shall be the representations and warranties set forth in this Section 3.1(i) and in Section 3.1(m)(vii), and this Agreement shall not be interpreted in any manner that is contrary thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Protective Life Insurance Co), Stock Purchase Agreement (Protective Life Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a1) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) that are required to be filed (taking into account any extensions of time within which to file) by or with respect to it and its Subsidiaries have been duly, timely and accurately filed, (2) all Taxes shown to be due on the Tax Returns referred to in clause (1) have been paid in full, (3) all Taxes that it or prior any of its Subsidiaries is obligated to withhold from amounts owing to any employee, creditor or third party have been paid over to the date of this Agreementproper Governmental Authority in a timely manner, to the extent due and payable, and each such Tax Return is correct and complete in all material respects and (ii4) duly paid in full or, no extensions or waivers of statutes of limitation have been given by or requested with respect to any of its U.S. federal income taxes or those of its Subsidiaries. It has made adequate accruals and reserves in its books and records provision in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf GAAP, in the financial statements included in the Regulatory Filings filed before the date hereof, for its sole benefit and recourse) for the payment of, all Taxes for all periods ending that accrued on or prior to before the end of the most recent period covered by its Regulatory Filings filed before the date hereof. As of this Agreementthe date hereof, neither it nor any of its Subsidiaries has any reason to believe that any conditions exist that could reasonably be expected to prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. No Liens for Taxes exist with respect to any of its assets or properties or those of its Subsidiaries, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for statutory Liens for Taxes not yet due and payable or that are being contested in good faith and reserved for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) GAAP. Neither the Company it nor any of its Subsidiaries has made any change in accounting methods, received been a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard party to any Taxes or Tax Returns distribution occurring during the two-year period prior to the date of this Agreement in which the parties to such distribution treated the distribution as one to which Section 355 of the Company Code applied, except for distributions occurring among members of the same group of affiliated corporations filing a consolidated federal income tax return. No material deficiencies for Taxes have been claimed, proposed or assessed against it or any of its Subsidiaries andin writing by any taxing or other Governmental Authority, to the knowledge and neither it nor any of the Companyits Subsidiaries has received any written notice of any potential material claim, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company proposal or assessment against it or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes any such deficiency for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) Taxes. There are no agreementspending audits, consents investigations or waivers claims for or relating to extend any material liability of it or any of its Subsidiaries in respect of Taxes, and there are no matters under discussion between it or any of its Subsidiaries on the statutory period one hand and any Governmental Authority on the other hand with respect to material Taxes. None of limitations applicable to its Tax Returns or the assessment or payment Tax Returns of any of its Subsidiaries is currently being examined by any Governmental Authority. Neither it nor any of its Subsidiaries has entered into a closing agreement pursuant to Section 7121 of the Code that requires it to include an item of income in a Tax period ending after the Closing Date. Since December 31, 2001, no written claim has been made by any Governmental Authority with respect to it or any of its Subsidiaries in a jurisdiction where it or such Subsidiary does not file Tax Returns that it or such Subsidiary is or may be subject to taxation by that jurisdiction. Neither it 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, combined, consolidated, unitary, or similar group for state or local Tax purposes, other than the group of which it is the common parent or (ii) any liability for the Taxes or deficiencies against the Company of another person (other than it or any of its Subsidiaries) under section 1.1502-6 of the Treasury Regulations (or any similar provision of state, and no power of attorney applicable to either the Company local or foreign law), as a transferee or successor, by contract or otherwise. Neither it nor any of its Subsidiaries with respect has agreed or is required to include in income for any Taxes is Tax period ending after the Closing Date any material adjustment under either Section 481(a) or Section 482 of the Code (or an analogous provision of state, local, or foreign law) by reason of a change in force.
(g) accounting method or otherwise. Neither the Company it nor any of its Subsidiaries is a party toto any contract, agreement, plan or arrangement relating to allocating or sharing the payment of, indemnity for, or liability for, Taxes with respect to any taxable period. Neither it nor any of its Subsidiaries has any material deferred income reportable for a period ending after the Closing Date but that is bound byattributable to a transaction (e.g., any agreementan installment sale) occurring in, arrangement or policy relating resulting from a change of accounting method for, a period ending on or prior to the allocation, indemnification or sharing Closing Date. Neither it nor any of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined its Subsidiaries has engaged in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (any “listed transaction” within the meaning of Section 1504(bsection 1.6011-4(b)(2) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
Treasury Regulations (i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any analogous provision of its Subsidiariesstate law).
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Amegy Bancorporation, Inc.), Merger Agreement (Zions Bancorporation /Ut/)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Acquired Companies has properly and its Subsidiaries has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) federal, state and local tax returns required by Legal Requirements to be filed by it on or prior to the date of this Agreementit, and each all such Tax Return is correct tax returns are true, complete and complete accurate in all material respects. Each of the Acquired Companies has paid all taxes, assessments and penalties due and payable on such tax returns. The reserves and provisions made for taxes in the Financial Statements are sufficient in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, of all Taxes for all periods ending on taxes whether disputed or prior not that are due or are hereafter found to have been due with respect to the conduct of the business of the Acquired Companies up to and through the date of this Agreementsuch Financial Statements. No Acquired Company has received any written notice from a Governmental Entity of a present dispute as to taxes of any nature payable by the Acquired Companies or as to any tax liens whether existing or inchoate on any of the assets of the Acquired Companies, except for those Taxes being contested current year taxes not presently due and payable. The federal income tax returns of the Acquired Companies have never been audited. No IRS or foreign, state, county or local tax audit is currently in good faithprogress. The Acquired Companies have not waived the expiration of the statute of limitations with respect to any tax returns.
(b) There are no Liens for Taxes upon any property or assets of the Each Acquired Company or any Subsidiary thereof, except for Liens for Taxes not yet due has withheld and for which adequate reserves paid all taxes required by Legal Requirements to have been established withheld and paid in accordance connection with GAAP with full provision made for the payment thereofamounts paid or owing to any employee, independent contractor, creditors, stockholder or other third party.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns Each of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has Acquired Companies have been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (validly electing S corporation within the meaning of Section 1504(b) 161 and 1362 of the Code)Code at all times since their date of formation and each Acquired Company will be an S corporation up to and including the Closing Date. No Acquired Company has, has filed since 1994 in the past 10 years, (a) acquired assets from another corporation in a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group transaction in which they are currently members and of which such Acquired Company’s tax basis for the Company is the common parent.
(i) With respect to completed pay periodsacquired assets was determined, the Company and each of its Subsidiaries has withheld from its employeesin whole or in part, independent contractors, creditors, stockholders, customers and third parties, and timely paid by reference to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions tax basis of applicable law.
the acquired assets (j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any other property) in the hands of its Subsidiaries.
the transferor or (kb) Neither acquired the stock of any corporation that is a qualified subchapter S subsidiary. No Acquired Company nor shall be liable for any Subsidiary shall become obligated tax under Section 1374 of the Code in connection with the closing any deemed sale of the Merger for the payment of any amount described in such Acquired Company’s assets caused by a Section 162(m)(1338(h)(10) of the Codeelection.
Appears in 2 contracts
Sources: Stock Purchase Agreement (O'Gara Group, Inc.), Stock Purchase Agreement (O'Gara Group, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedulehas not had, and could not reasonably be expected to have, a material adverse effect on Cinergy:
(ai) Each of the Company Cinergy and its Subsidiaries subsidiaries has (i) duly filed (timely filed, or there have been has caused to be timely filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) , all Tax Returns (as hereinafter defineddefined below) required to be filed by it it, and all such Tax Returns are true, complete and accurate. All Taxes (as defined below) shown to be due and owing on or such Tax Returns have been timely paid.
(ii) The most recent financial statements contained in the Cinergy SEC Reports filed prior to the date of this AgreementAgreement reflect, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf GAAP, an adequate reserve for its sole benefit and recourse) for the payment of, all Taxes payable by Cinergy and its subsidiaries for all taxable periods ending on or prior to through the date of this Agreement, except for those Taxes being contested in good faithsuch financial statements.
(biii) There are is no Liens for Taxes upon any property audit, examination, deficiency, refund litigation, proposed adjustment or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established matter in accordance controversy with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard respect to any Taxes or Tax Returns Return of the Company Cinergy or any of its Subsidiaries andsubsidiaries, to the knowledge of the CompanyCinergy, no such Audit is threatened.
(e) An Audit neither Cinergy nor any of each United States federal income Tax Return its subsidiaries has received written notice of the Company any claim made by a governmental authority in a jurisdiction where Cinergy or any of its Subsidiaries subsidiaries, as applicable, does not file a Tax Return, that Cinergy or such subsidiary is or may be subject to income taxation by that jurisdiction, no deficiency with respect to any Taxes has been completed proposed, asserted or assessed against Cinergy or any of its subsidiaries, and no requests for waivers of the time to assess any Taxes are pending.
(iv) The federal income Tax Returns of Cinergy and its subsidiaries have been examined by and settled with the applicable Tax Authorities Internal Revenue Service ("IRS") (or the applicable statutes of limitation for the assessment of Taxes for such periods have expiredlapsed) for all periods years through 1990. All material assessments for Taxes due with respect to such completed and including 1996, and no adjustments were asserted as a result of such Audits which settled examinations or any concluded litigation have not been finally resolved and fully paid.
(fv) There are no outstanding written agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company Cinergy or any of its Subsidiariessubsidiaries, and no power of attorney applicable to granted by either the Company Cinergy or any of its Subsidiaries subsidiaries with respect to any Taxes is currently in force.
(gvi) Neither the Company Cinergy nor any of its Subsidiaries subsidiaries is a party to, or is bound by, to any agreement, arrangement or policy relating to agreement providing for the allocation, indemnification allocation or sharing of Taxes.
Taxes imposed on or with respect to any individual or other Person (hother than (I) The Companysuch agreements with customers, as vendors, lessors or the common parent like entered into in the ordinary course of an affiliated group business and (II) agreements with or among Cinergy or any of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Codeits subsidiaries), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company Cinergy nor any of such Subsidiaries its subsidiaries (A) has been a member of an affiliated group (or similar state, local or foreign filing group) filing a consolidated United States U.S. federal income Tax Return (other than the affiliated group in which they are currently members and the common parent of which is Cinergy) or (B) has any liability for the Company is the common parent.
Taxes of any person (i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company other than Cinergy or any of its Subsidiariessubsidiaries) (I) under Treasury Regulation ss. 1.1502-6 (or any similar provision of state, local or foreign law), or (II) as a transferee or successor.
(kvii) There are no material Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Cinergy and its subsidiaries.
(viii) Neither the Company Cinergy nor any Subsidiary shall become obligated in connection with of its subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent or impede either the closing Duke Reorganization from qualifying as a reorganization under Section 368(a) of the Code or the Cinergy Merger for the payment of any amount described in from qualifying as a reorganization under Section 162(m)(1368(a) of the Code.. For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) and all other material Tax Returns required to be filed by it or on behalf of Parent, Purchaser or prior any of Parent Tax Subsidiaries have been properly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to the date be filed (after giving effect to any valid extensions of this Agreementtime in which to make such filings), and each all such Tax Return is correct Returns, as amended, are accurate and complete in all material respects respects. Except as and to the extent publicly disclosed by Parent in the Parent SEC Reports, (i) all Taxes payable by or on behalf of Parent, Purchaser or any of Parent Tax Subsidiaries (whether or not shown in a Tax Return) have been fully and timely paid or adequately provided for in accordance with GAAP, and (ii) duly paid in full or, made adequate reserves or accruals and reserves in its books and records for Taxes have been provided in accordance with GAAP with full provision (respect to any period for which Tax Returns have not yet been filed or there has been paid for which Taxes are not yet due and owing or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all which Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes are being contested in good faith. Neither Parent nor Purchaser nor any of Parent Tax Subsidiaries has executed or filed with the IRS or any other taxing authority any agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitation), and no power of attorney with respect to any Tax matter is currently in force and to the Knowledge of Parent, no request for any such waiver or extension is currently pending.
(b) There are no Liens (i) Parent for Taxes upon any property or assets all taxable years commencing in the year that the Parent first made a REIT tax election, through the most recent December 31, has elected to be subject to taxation as a REIT within the meaning of Section 856 of the Company or any Subsidiary thereofCode and has satisfied all requirements to qualify as a REIT for such years, except for Liens for Taxes not yet due (ii) Parent has operated, and for which adequate reserves have been established intends to continue to operate, in accordance with GAAP with full provision made such a manner as to qualify as a REIT for the payment thereoftaxable year of this Agreement and, if different, the taxable year in which the Merger becomes effective, (iii) if the taxable year of Parent were to close on the date of the Closing, Parent would have satisfied all requirements to qualify as a REIT for such year end and (iv) to Parent’s Knowledge, no challenge to Parent’s status as a REIT is pending or threatened.
(c) No audit or other proceeding by any taxing authority is pending with respect to any Taxes due from or with respect to Parent, Purchaser or any Parent Tax Subsidiary, nor is there any material dispute with respect to any liability for Taxes of Parent, Purchaser or any Parent Tax Subsidiary either claimed or raised.
(d) Neither Parent nor Purchaser nor any of Parent Tax Subsidiaries has engaged in any transaction that has given rise to or could be reasonably expected to give rise to a disclosure obligation as a “listed transaction” under Section 6011 of the Company Code and the regulations promulgated thereunder. Parent, Purchaser and all of Parent Tax Subsidiaries have complied with all obligations applicable to Parent, Purchaser or the relevant Parent Tax Subsidiary under Sections 6111 and 6112 of the Code.
(e) Neither Parent nor Purchaser nor any of its Subsidiaries has made entered into any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations Prohibited Transaction (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) 857 of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (CNL Retirement Properties Inc), Merger Agreement (Health Care Property Investors Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the The Company and its Subsidiaries has timely (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) governmental authorities all material Tax Returns (as hereinafter defineddefined below) required to be filed by it on or prior to the date of this Agreementit, and each such Tax Return is Returns are true, correct and complete in all material respects respects, and (ii) duly paid in full or, made adequate accruals and reserves in its books and records or reserved in accordance with GAAP with full provision generally accepted accounting principles on the Company Financial Statements all material Taxes (or there as defined below) required to be paid. The Company has not requested an extension of time within which to file a material Tax Return, which has not been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) since filed. There are no Liens liens for Taxes upon any property or assets asset of the Company or any Subsidiary thereofCompany, except for Liens other than liens for Taxes not yet due and for which adequate reserves have been established payable or Taxes contested in good faith by appropriate proceedings or that are otherwise not material and reserved against in accordance with GAAP generally accepted accounting principles. No deficiency with full provision made respect to Taxes has been proposed, asserted or assessed in writing against the Company, which has not been fully paid or adequately reserved or reflected in the Company Financial Statements, and there are no material unresolved issues of law or fact arising out of a written notice of a deficiency, proposed deficiency or assessment from the Internal Revenue Service or any other governmental taxing authority with respect to Taxes of the Company. The Company has not agreed to an extension of time with respect to a Tax deficiency, other than extensions which are no longer in effect. Neither the Company nor any of its subsidiaries has received (A) notice from any federal taxing authority of its intent to examine or audit any of the Company’s or any of its subsidiaries’ Tax Returns or (B) notice from any state taxing authority of its intent to examine or audit any of the Company’s or any of its subsidiaries’ Tax Returns, other than notices with respect to examinations or audits by any state taxing authority that have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company is not a party to any agreement providing for the payment thereofallocation or sharing of Taxes with any entity other than agreements the consequences of which are fully and adequately reserved for in the Company Financial Statements. The Company has been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the five-year period ending on the date hereof.
(b) The Company and each of its subsidiaries has withheld and paid each material Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other party, and materially complied with all information reporting and backup withholding provisions of applicable law.
(c) The statutes of limitations for the federal income Tax Returns of the Company and its subsidiaries have expired or otherwise have been closed for all taxable periods ending on or before December 31, 2007.
(d) Since December 31, 2007, neither the Company nor any of its subsidiaries has entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes, nor is any request for such a waiver or extension pending.
(e) Neither the Company nor any of its Subsidiaries has made subsidiaries is the subject of or bound by any change in accounting methodsmaterial private letter ruling, received a ruling from any Tax Authority technical advice memorandum, closing agreement or signed an similar material ruling, memorandum of agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidtaxing authority.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against Neither the Company nor its subsidiaries has entered into, has any liability in respect of, or has any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries filing obligations with respect to to, any Taxes is “reportable transactions,” as defined in forceSection 1.6011-4(b)(1) of the U.S. Treasury Regulations.
(g) Neither the Company nor any of its Subsidiaries is a party tosubsidiaries will be required to include any material item of income in, or is bound byexclude any material item of deduction from, taxable income for any agreement, arrangement taxable period (or policy relating portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the allocationClosing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, indemnification local or sharing foreign Tax law), (ii) “closing agreement” as described in Section 7121 of Taxesthe Code (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date, or (iii) deferred intercompany gain or excess loss account described in the U.S. Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax law).
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of Neither the Company and nor any of its subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that would be reasonably likely to prevent the Subsidiaries that are "includable corporations" (Merger from qualifying as a reorganization within the meaning of Section 1504(b368(a) of the Code), .
(i) The Company has filed since 1994 a consolidated return for United States made available to Pyramid correct and complete copies of (i) all U.S. federal income Tax purposes Returns of the Company and its subsidiaries relating to taxable periods ending on behalf or after December 31, 2007, filed through the date hereof and (ii) any material audit report within the last three years relating to any material Taxes due from or with respect to the Company or any of itself and its subsidiaries.
(j) No jurisdiction where the Company or any of its subsidiaries does not file a Tax Return has made a claim that the Company or any of its subsidiaries is required to file a Tax Return for a material amount of Taxes for such Subsidiaries and jurisdiction.
(k) Within the last three years, neither the Company nor any of such Subsidiaries its subsidiaries has been a member of an affiliated group filing a consolidated owned any material assets located outside the United States federal Tax Return other than or conducted a material trade or business outside the affiliated group United States.
(l) Except as set forth in which they are currently members and Section 6.11(l) of the Company Disclosure Schedule, all of the transactions which the Company is the common parenthas accounted for as h▇▇▇▇▇ under SFAS 133 have also been treated as hedging transactions for federal income Tax purposes pursuant to U.S. Treasury Regulation Section 1.1221-2 and have been properly identified as such under U.S. Treasury Regulation Section 1.1221-2(f).
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Pyramid Oil Co), Merger Agreement (Pyramid Oil Co)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Platinum and its Platinum's Subsidiaries has (i) duly have timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter defined) which are required to be filed by it on or prior them, which returns and reports are, to the date Knowledge of this AgreementPlatinum, and each such Tax Return is true, correct and complete in all material respects respects, and (ii) duly has paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, timely all Taxes for all periods ending whether or not shown as due on or prior such Tax Returns that they are required to the date of this Agreement, except for those Taxes being contested in good faithhave paid.
(b) There are no Liens for Taxes upon actions, suits, proceedings, audits, investigations or claims now pending, nor, to the Knowledge of Platinum, proposed against Platinum or Platinum's Subsidiaries (including without limitation, any property partnership level administrative or assets judicial proceedings under Section 6231 et seq. of the Company Code or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full similar provision made for the payment thereofof state or local law) relating to any Taxes.
(c) Neither the Company nor Platinum has delivered, or made available, to NorthTech complete and correct copies of all Tax Returns, examination reports, and statements of deficiency that have been filed by, assessed against, or agreed to by any of its Platinum or Platinum's Subsidiaries, with respect to the activities of any of Platinum or Platinum's Subsidiaries. To the Knowledge of Platinum, no claim has ever been made or proposed by an authority in a jurisdiction where Platinum or Platinum's Subsidiaries has made any change does not file Tax Returns that it is or may be required to file Tax Returns in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectthat jurisdiction.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to There are no Liens on any Taxes or Tax Returns of the Company assets of Platinum or Platinum's Subsidiaries, except for any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedLiens for current Taxes that are not yet due and payable and Permitted Liens.
(e) An Audit Neither Platinum nor Platinum's Subsidiaries (i) has waived any statute of each United States federal income limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency which Taxes have not since been paid, (ii) except as set forth in Section 3.12(e) of the Disclosure Letter, has requested or been granted an extension of the time for filing any Tax Return of to a date later than the Company or any of its Subsidiaries Closing Date, which Tax Return has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have since not been finally resolved filed and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes relating to such Tax Return (whether or deficiencies against the Company or not shown on as due on such Tax Return) has not been paid, (iii) has granted to any of its Subsidiaries, and no Person any power of attorney applicable to either the Company or any of its Subsidiaries that is currently in force with respect to any Taxes is in force.
(g) Neither the Company nor Tax matter relating to any of its Subsidiaries is a party toPlatinum or Platinum's Subsidiaries, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(hiv) The Company, as the common parent has been a member of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely or filed or been included in a combined, consolidated or unitary income or similar Tax Return.
(f) Section 3.12(f) of the Company Disclosure Letter sets forth (i) all types of Taxes paid, and all types of Tax Returns filed, by or on behalf of each of Platinum and Platinum's Subsidiaries and (ii) all of the jurisdictions that impose such Taxes or the duty to file such Tax Returns.
(g) Neither Platinum nor Platinum's Subsidiaries has any liability for Taxes of any other Person by reason of contract, agreement (including as a party to a Tax allocation, sharing, or similar agreement), assumption, transferee liability, operation of law, or otherwise.
(h) Neither Platinum nor Platinum's Subsidiaries or any other person on behalf of any of them: (i) has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local, foreign, or other law; or (ii) has agreed to, or is required to make, any adjustments pursuant to Section 481 or Section 263A of the Code or any similar provision of state, local, foreign, or other law, nor has any Governmental Authority proposed any such adjustments or change in accounting method.
(i) Neither Platinum nor Platinum's Subsidiaries has made any payment or payments, is obligated to make any payment or payments, or is a party to (or a participating employer in) any agreement or Employee Benefit Plan that are "includable corporations" could obligate one of Platinum or Platinum's Subsidiaries to make any payment or payments that would constitute an 'excess parachute payment,' as defined in Section 280G of the Code (or any similar provision of state, local, foreign, or other law) or that would otherwise not be fully deductible under Section 162 or Section 404 of the Code (or any similar provision of state, local, foreign, or other law).
(j) Neither Platinum nor Platinum's Subsidiaries has been a United States real property holding corporation within the meaning of Section 1504(b897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company Platinum nor any Subsidiary shall become obligated Platinum's Subsidiaries has distributed stock of another Person, or had its stock distributed by another Person, in connection with the closing of the Merger for the payment of any amount described a transaction that was purported or intended to be governed in whole or in part by Section 162(m)(1) 355 or Section 361 of the Code.
(l) All Taxes attributable to periods ending on or prior to the Closing Date, to the extent not required to have been paid previously, will be fully and adequately reserved for or accrued as of the Closing Date as a current liability on the respective balance sheets of Platinum, Platinum's Subsidiaries, or both.
(m) Since June 30, 2006, neither Platinum nor Platinum's Subsidiaries has incurred any liability for any Tax other than in the ordinary course of its business. Neither Platinum nor Platinum's Subsidiaries has entered into a transaction that currently is being accounted for under the installment method of Section 453 of the Code or a similar provision of state, local, foreign, or other law, and neither Platinum nor Platinum's Subsidiaries has any taxable income that will be reportable in a taxable period beginning after the Closing Date that is attributable to a transaction or event that occurred prior to the Closing.
Appears in 2 contracts
Sources: Contribution Agreement (Platinum Research Organization, Inc.), Contribution Agreement (Platinum Research Organization, Inc.)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Except as disclosed on Schedule 5.16, Seller has timely prepared and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) in accordance with the appropriate applicable law all federal and state income Tax Authorities (as hereinafter defined) returns and all material other Tax Returns (as hereinafter defined) returns required to be filed by it or with respect to its operations and assets with respect to Taxes which could result in a Lien on any of the Acquired Assets (other than a Lien for current Taxes not yet due and payable) or prior to the date for which Holdco or its Affiliates (other than Seller and any Affiliate of this AgreementHoldco that is a stockholder of Seller) could be liable, and each all Taxes shown as due on such Tax Return is correct and complete in all material respects and (ii) duly paid in full orreturns, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there for which a notice of, or assessment or demand for payment has been paid received or such provision has are otherwise due and payable, have been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreementtimely paid, except for those Taxes that are being contested in good faithfaith by appropriate proceedings. Such Tax returns were materially complete and correct as of the date on which they were filed or as subsequently amended and no facts have later become known by Seller to the contrary. Except as disclosed on Schedule 5.16, Seller has received no revenue agent's reports or other written or formal assertions of deficiencies or other liabilities for such Taxes (including any reports, statements, summaries and other communications of assertions or claims of deficiencies or other liabilities) with respect to Seller for past periods for which the applicable statute of limitations has not expired.
(b) Except for waivers and extensions disclosed on Schedule 5.16, there are no waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any Tax return that relates to Seller which could result in a Lien upon any of the Acquired Assets, and no request for any such waiver or extension is currently pending.
(c) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for (other than Permitted Liens and other than for Taxes not yet due and payable) upon the Acquired Assets. Except as disclosed on Schedule 5.16, no Lien, action, suit, proceeding, investigation, audit, examination, request for which adequate reserves have been established in accordance with GAAP with full provision made for information, claim or assessment is presently pending or, to the payment thereof.
(c) Neither the Company nor any knowledge of its Subsidiaries has made any change in accounting methodsSeller, received a ruling from any Tax Authority or signed an agreement proposed with regard to any Taxes reasonably likely that relate to have Seller for which Holdco or its Affiliates would or could be liable or which could result in a Company Material Adverse EffectLien on the Acquired Assets.
(d) No Audit (as hereinafter definedSeller is not a "foreign person" within the meaning of Code Section 1445(f)(3) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedand Treasury Regulation Section 1.1445-2(b)(2)(i).
(e) An Audit of each United States federal income Tax Return of the Company The Acquired Assets are not subject to any joint venture, partnership or any of its Subsidiaries has been completed by the applicable Tax Authorities (other arrangement or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted contract that is treated as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return partnership for United States federal Federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parenttax purposes.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Charter Communications Inc /Mo/), Asset Purchase Agreement (High Speed Access Corp)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company Parent and its Subsidiaries each Parent Subsidiary has (i) duly timely filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Governmental Entity all material Tax Returns (as hereinafter defined) required to be filed by it on or prior filed, taking into account any extensions of time within which to the date of this Agreementfile such Tax Returns, and each all such Tax Return is Returns were true, complete and correct and complete in all material respects respects. Parent and (ii) each Parent Subsidiary has duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid on their behalf), or such provision made adequate provisions for, all material Taxes required to be paid by them.
(b) Parent (i) for all taxable years commencing with Parent’s taxable year ended December 31, 2009 and through December 31, 2015 has been made on subject to taxation as a REIT and has satisfied all requirements to qualify as a REIT for such years; (ii) has operated since January 1, 2016 until the date hereof in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner as to qualify as a REIT; and (iv) has not to its behalf knowledge taken or omitted to take any action that could reasonably be expected to result in a challenge by the IRS or any other Governmental Entity to its qualification as a REIT, and to the knowledge of Parent, no such challenge is pending or threatened.
(c) There are no current audits, examinations or other proceedings of a Governmental Entity pending with regard to any U.S. federal or other material Taxes of Parent or the Parent Subsidiaries, and neither Parent nor any Parent Subsidiary has received a written notice or announcement of any such audits, examinations or proceedings.
(d) Merger Sub has been treated as a disregarded entity for U.S. federal income tax purposes at all times since its sole benefit formation.
(e) Neither Parent nor any Parent Subsidiary directly or indirectly holds any asset the disposition of which would be subject to (or to rules similar to) Section 1374 of the Code.
(f) Parent and recourse) for the Parent Subsidiaries have complied, in all material respects, with all applicable Laws, rules and regulations relating to the payment ofand withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471-1474 and 3402 of the Code or similar provisions under any state and foreign Laws) and have duly and timely withheld and, in each case, have paid over to the appropriate Governmental Entities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(g) There are no Tax Liens upon any property or assets of Parent or any Parent Subsidiary except for Parent Permitted Liens.
(h) There are no Tax allocation or sharing agreements or similar arrangements with respect to or involving Parent or any Parent Subsidiary, and after the Closing Date, neither Parent nor any Parent Subsidiary shall be bound by any such Tax allocation agreements or similar arrangements or have any liability thereunder for amounts due in respect of periods prior to the Closing Date, except as otherwise provided herein and except, in each case, for customary indemnification provisions contained in credit or other commercial agreements the primary purposes of which do not relate to Taxes.
(i) Neither Parent nor any Parent Subsidiary is or has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(j) Neither Parent nor any Parent Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
(k) Neither Parent nor any Parent Subsidiary has waived any statute of limitations in respect of any U.S. federal or other material Taxes or agreed to any extension of time with respect to a U.S. federal or other material Tax assessment or deficiency.
(l) Neither Parent nor any Parent Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for all periods any taxable period (or portion thereof) beginning after the Closing Date as a result of any (A) change in method of accounting of Parent or any Parent Subsidiary for a taxable period ending on or prior to the date of this AgreementClosing Date, except for those Taxes being contested in good faith.
(bB) There are no Liens for Taxes upon any property installment sale or assets of the Company open transaction disposition made by Parent or any Parent Subsidiary thereofon or prior to the Closing Date, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(cC) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, prepaid amount received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company Parent or any of its Subsidiaries and, Parent Subsidiary on or prior to the knowledge Closing Date, or (D) election made of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company Parent or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable Parent Subsidiary prior to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Closing under Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b108(i) of the Code).
(m) Section 4.12(m) of the Parent Disclosure Letter sets forth a true and complete list of each Parent Subsidiary and each other entity in which Parent directly, has filed since 1994 a consolidated return indirectly or constructively owns an equity interest of ten percent (10%) or greater (by vote or value) and their respective classification for United States U.S. federal income Tax purposes on behalf tax purposes, jurisdiction of itself incorporation or organization, as the case may be, and the type of and percentage of interest held, directly or indirectly, by Parent in each Parent Subsidiary, including in the case of any entity classified as a corporation for U.S. federal income tax purposes, whether such Subsidiaries and neither the Company entity has made an election to be treated as a REIT or a Taxable REIT Subsidiary.
(n) Neither Parent nor any of such Subsidiaries Parent Subsidiary (i) has been a member of an affiliated group filing a consolidated United States U.S. federal income Tax Return other than or (ii) has any liability for the affiliated group in which they are currently members and Taxes of which the Company is the common parentany Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(io) With respect to completed pay periodsNone of Parent, Merger Sub or any Parent Subsidiary has entered into any “closing agreement” as described in Section 7121 of the Company and each Code (or any corresponding or similar provision of its Subsidiaries has withheld from its employeesstate, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate local or foreign income Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawLaw).
(jp) No power Neither Parent nor any Parent Subsidiary has requested, has received or is subject to any written ruling of attorney is currently in force a Governmental Entity or has entered into any written agreement with a Governmental Entity with respect to any matter relating Taxes.
(q) Neither Parent nor any Parent Subsidiary have received a written claim by any Governmental Entity in a jurisdiction where Parent and the Parent Subsidiaries do not file Tax Returns that they are or may be subject to Taxes income taxation by the jurisdiction.
(r) No deficiency for any U.S. federal or other material Tax has been asserted or assessed by a Governmental Entity in writing against Parent or any Parent Subsidiary that could affect the Company has not been satisfied by payment, settled or withdrawn.
(s) Since January 1, 2015, neither Parent nor any of its SubsidiariesSubsidiaries have rescinded or revoked any Tax election, settled or compromised any Tax liability or amended any Tax Return filed before the date hereof. No material Tax elections have been made following the filing of the Company’s 2014 U.S. federal income tax return.
(kt) Neither the Company Parent nor any Parent Subsidiary shall become obligated in connection with (i) owns any “residual interests” (within the closing meaning of Section 860G(a)(2) of the Merger for Code) in a “REMIC” (within the payment meaning of Section 860D(a) of the Code) or (ii) has allocated “excess inclusion income” to their stockholders.
(u) To the knowledge of Parent, neither Parent nor any amount described Parent Subsidiary has engaged at any time in any “prohibited transactions” within the meaning of Section 162(m)(1856(b)(6) of the Code.
(v) This Section 4.12 contains the sole representations and warranties of Parent and the Parent Subsidiaries with respect to Tax matters.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Taxes. Except as set forth would not, individually or in Section 3.16 of the Company Disclosure Scheduleaggregate, reasonably be expected to have a Material Adverse Effect on Janus:
(aA) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed by it Janus and its subsidiaries, have been timely filed, (B) all such Tax Returns are true, complete and correct in all respects, (C) all Taxes shown as due and payable on such Tax Returns, and all Taxes (whether or not reflected on such Tax Returns) required to have been paid by Janus and its subsidiaries have been paid or appropriate reserves have been recorded in the Janus Financial Statements, and (D) all Taxes of Janus or its subsidiaries for any taxable period (or a portion thereof) beginning on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and Closing Date (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There which are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and payable) have, to the extent relevant or required, been properly reserved for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofJanus Financial Statements.
(cii) Neither No written agreement or other written document waiving or extending, or having the Company nor effect of waiving or extending, the statute of limitations or the period of assessment or collection of any Taxes relating to Janus or any of its Subsidiaries subsidiaries has made been filed or entered into with any change in accounting methodsTaxing Authority, received a ruling from and no power of attorney with respect to any Tax Authority or signed an agreement with regard such Taxes has been granted to Taxes reasonably likely to have a Company Material Adverse Effectany person.
(diii) (A) No Audit (as hereinafter defined) by a Tax audits or enquiries before any Taxing Authority is are presently pending with regard to any Taxes or Tax Returns Return of the Company Janus or any of its Subsidiaries andsubsidiaries, as to the knowledge of the Companywhich any Taxing Authority has asserted in writing any claim or proposed adjustment, and (B) no such Audit Taxing Authority is threatened.
(e) An Audit of each United States federal income Tax Return of the Company now asserting in writing any deficiency or claim for Taxes or any adjustment to Taxes with respect to which Janus or any of its Subsidiaries subsidiaries may be liable, which has not been completed by the applicable Tax Authorities (fully paid or finally settled or for which Janus or the applicable statutes of limitation relevant subsidiary has not properly set aside or reserved for the assessment of Taxes in its accounts for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidpurpose.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(giv) Neither the Company Janus nor any of its Subsidiaries subsidiaries (A) is a party toto or bound by or has any obligation under any Tax indemnification, separation, sharing or is bound by, any agreement, similar agreement or arrangement (other than such an agreement or policy relating arrangement exclusively between or among Janus and its subsidiaries or an agreement entered into in the ordinary course of business which does not relate primarily to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries (B) is or has been a member of an affiliated any consolidated, combined, unitary or similar group for purposes of filing a consolidated United States federal Tax Return Returns or paying Taxes (other than the affiliated a group in which they are currently members comprised solely of subsidiaries of Janus, or Janus and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each any of its Subsidiaries subsidiaries), (C) has withheld from its employeesentered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of foreign, independent contractorsstate, creditors, stockholders, customers and third parties, and timely paid to or local Tax law) or any other binding agreement with a Taxing Authority that would have a material effect on the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions determination of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company Janus’s or any of its Subsidiaries.
subsidiaries’ liability to Tax in a tax year ending after the Effective Time or (kD) Neither the Company nor has any Subsidiary shall become obligated in connection with the closing of the Merger liability for the payment of Taxes of any amount described person (other than Janus or any of its subsidiaries) as a successor or transferee.
(v) None of the assets of Janus or any of its subsidiaries is subject to any Liens for Taxes (other than Liens for Taxes that are not yet due and payable or which are being contested in good faith and, in each case, for which ▇▇▇▇▇▇▇▇▇ or the relevant subsidiary has properly set aside or reserved for in its accounts).
(vi) Neither Janus nor any of its subsidiaries has agreed to make or is required to make any adjustment for a taxable period ending after the Effective Time by reason of a change in accounting method or otherwise.
(vii) Neither Janus nor any of its subsidiaries has engaged (i) in the case of U.S. jurisdictions, in any “listed transaction,” as defined in Section 162(m)(16707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4(b) (or any similar provision of U.S. state or local law), and (ii) in the case of non-U.S. jurisdictions, in any transaction the principal purpose of which was the avoidance of, or obtaining of an advantage in relation to, Taxes and which is required by law to be specifically disclosed to any Taxing Authority.
(viii) Neither Janus nor any of its subsidiaries, has taken any action, or has knowledge of any fact or circumstance, that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Taxes. (a) Except as set forth in Section 3.16 of Schedule 3.18(a), the Company Disclosure Schedule:
(a) Each of Seller has made available to the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) Purchaser all Tax Returns (as hereinafter defined) filed by the Seller for all periods ending on or after December 31, 2000 and before the date of this Agreement, all Tax elections, claims for refunds of Taxes, correspondence, and any other information supplied to or received from the taxing authorities for all such periods. The Seller has filed all Tax Returns required by law to be filed by it on or prior to the date of this Agreement, and each such those Tax Return is Returns are true, complete and correct and complete in all material respects and respects.
(iib) duly The Seller has paid in full or, or made adequate accruals and reserves provision in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) the Latest Financial Statements for the payment of, of all Taxes for all periods ending on that have accrued or become due prior to the date of this Agreement. All Taxes that the Seller has been required to withhold or to collect have been duly withheld or collected, except for those Taxes being contested in good faith.
(b) There and all withholdings and collections either have been duly and timely paid over to the appropriate Governmental Entities or are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made are duly reflected on the Latest Financial Statements or, for the payment thereofperiod after June 30, 2003, are reflected on the books and records of the Seller.
(c) Neither There are no audits, examinations, administrative proceedings or court proceedings, pending or, to the Company nor any of its Subsidiaries has made any change in accounting methodsSeller's knowledge, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending proposed, with regard to any Taxes or Tax Returns filed by the Seller. The Seller has not given or been requested to give waivers or extensions of any statute of limitations relating to the filing of Tax Returns or the assessment of Taxes, except for any waiver or extension which has expired or any extensions resulting from the filing of a Tax Return after its original due date in the ordinary course of business. The Seller has not received from any Governmental Entity in a jurisdiction where the Seller does not file Tax Returns any notice that it either is or may be subject to taxation by that jurisdiction. The Tax Returns of the Company or Seller for any of its Subsidiaries andtaxable period ending after December 31, to 2000 have not been audited by the knowledge of the Company, no such Audit is threatenedInternal Revenue Service.
(ed) An Audit For the purposes of each United States federal income Tax Return of the Company this Section, "Tax" or "Taxes" means any of its Subsidiaries has been completed by the applicable Tax Authorities federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or the applicable statutes similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of limitation for the assessment of Taxes for such periods have expired) for all periods through and any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including 1996any interest, penalty or addition thereto, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements"Tax Return" means any return, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiariesdeclaration, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party toreport, claim for refund, or is bound by, any agreement, arrangement information return or policy statement relating to the allocationTaxes, indemnification or sharing of Taxesincluding any amendment thereof.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Thoratec Corp), Asset Purchase Agreement (Diametrics Medical Inc)
Taxes. Except as set forth would not, individually or in Section 3.16 of the aggregate, reasonably be likely to have a Company Disclosure ScheduleMaterial Adverse Effect:
(a) Each of the The Company and each of its Subsidiaries has have (i) duly timely filed or caused to be filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter definedtaking into account any extension of time within which to file) all Tax Returns (as hereinafter defined) required to be filed by it on or prior to the date of this Agreementsuch entities, and each all such Tax Return is correct Returns are complete and complete in all material respects and correct, (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been timely paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, caused to be timely paid all Taxes for shown as due on such Tax Returns and (iii) have complied with all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faithinformation reporting (and related withholding) and record retention requirements.
(b) All Taxes required to be withheld under applicable Tax Law in connection with amounts paid by the Company or any Subsidiary of the Company to any employee, independent contractor, creditor or shareholder have been withheld and, to the extent required by applicable Tax Law, paid to the appropriate Governmental Authority.
(c) There are no Liens for Taxes upon pending audits with respect to any property or assets Tax Returns of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for of its Subsidiaries as of the payment thereofdate hereof.
(cd) No waivers or extensions of statutes of limitations in respect of Taxes have been granted or agreed by the Company or any of its Subsidiaries that are currently outstanding.
(e) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling written notice from any Governmental Authority in a jurisdiction in which the Company or any of its Subsidiaries does not file Tax Authority Returns that the Company or signed an agreement with regard any such Subsidiary, as applicable, is subject to Taxes reasonably likely to have a Company Material Adverse Effecttaxation by that jurisdiction, which such notice has not been resolved.
(df) There are no agreements currently in effect relating to the allocation or sharing of Taxes to which the Company or any of its Subsidiaries is a party, other than such agreements between or among the Company and its Subsidiaries or between or among Subsidiaries of the Company.
(g) No Audit (as hereinafter defined) by a Tax Authority is presently pending deficiency with regard respect to any Taxes has been proposed, asserted or Tax Returns of assessed in writing against the Company or any of its Subsidiaries and, to the knowledge Knowledge of the Company, there are no such Audit is threatenedpending or threatened in writing audits, claims or proceedings regarding any Taxes of the Company and its Subsidiaries or the properties or assets of the Company and its Subsidiaries.
(eh) An Audit The Company and each of each United States federal income its Subsidiaries have at all times complied in all respects with Section 482 of the Code and any similar provision of foreign Tax Return Law.
(i) There are no liens (other than any Permitted Liens) for Taxes on any of the properties or assets of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paidSubsidiaries.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(gj) Neither the Company nor any of its Subsidiaries is a party towill be required to include any item of income in, or is bound byto exclude any item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any agreement, arrangement accounting method change or policy relating agreement with any Governmental Authority on or prior to the allocationClosing Date, indemnification any intercompany transaction or sharing excess loss account described in Section 1502 of Taxesthe Code (or any corresponding provision of Tax Law), any prepaid amount received on or prior to the Closing Date, or as a result of Section 807 of the Code. Neither the Company nor any of its Subsidiaries will have any liability for Taxes under Section 965(h) of the Code after the Closing Date due to an election made prior to the Closing Date.
(hk) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of Neither the Company and nor any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b) or any other transaction requiring disclosure under analogous provisions of Tax Law.
(l) Since the date that precedes by two years the date of this Agreement, neither the Company nor any of its Subsidiaries that are "includable corporations" has been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 1504(b355(a)(1)(A) of the Code), has filed since 1994 ) in a consolidated return distribution of stock intended to qualify for United States federal income Tax purposes on behalf tax-free treatment under Section 355 of itself and such Subsidiaries and neither the Code.
(m) Neither the Company nor any of such its Subsidiaries (i) has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which was any of the Company and its Subsidiaries) since August 7, 2019, or (ii) has any obligation or liability for the Taxes of any person (other than the affiliated group Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract (other than a Contract entered into in which they are currently members and the ordinary course of business the primary subject of which is not Taxes) or otherwise. The deconsolidation of the Company’s prior consolidated group resulting from the Company’s demutualization in 2019 did not result in any event that would result in income recognition for the Company is the common parentand its Subsidiaries.
(in) With respect to completed pay periods, Neither the Company and each nor any of its Subsidiaries has withheld from requested or received any rulings or entered into any closing, gain recognition or similar agreements that will have any effect in any Tax period (or portion thereof) beginning after the Closing. Notwithstanding any other representation or warranty in this Article IV, (i) the representations and warranties in this Section 4.16, Section 4.18 and Section 4.29 constitute the sole and exclusive representations and warranties of the Company and its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force Subsidiaries with respect to any matter relating Taxes or Tax Returns and (ii) nothing in this Agreement (including this Section 4.16) shall be construed as providing a representation or warranty with respect to Taxes that could affect the existence, amount, expiration date or limitations on (or availability of) any net operating loss or other Tax attribute of the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Vericity, Inc.), Merger Agreement (Vericity, Inc.)
Taxes. Except as set forth identified in Section 3.16 3.1(j) of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all All Tax Returns (as hereinafter defined) required to be filed with respect to the Transferred Companies with any relevant Taxing Authority have been duly and timely filed in the manner prescribed by it applicable Requirements of Law (taking into account all valid extensions) and such Tax Returns were correct and complete in all material respect. All Taxes reflected as due and owing by the Transferred Companies have been paid. To the Knowledge of Seller, no claim has ever been made by a Taxing Authority in a jurisdiction where the Transferred Companies do not file Tax Returns that the Transferred Companies are or may be subject to taxation by that jurisdiction.
(ii) Neither of Seller nor either Transferred Company has received from any Taxing Authority (including jurisdictions where the Transferred Companies have not filed Tax Returns) any (A) written notice indicating an intent to open an audit or other review; (B) written request for information related to Tax matters; or (C) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted, or assessed by any Taxing Authority against the Transferred Companies. Section 3.1(j)(ii) of the Disclosure Schedule lists all material Tax Returns filed with respect to the Transferred Companies for taxable periods ended on or after December 31, 2005, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit. Seller has delivered or made available to Buyer true, correct and complete copies of all material Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to the Transferred Companies filed or received since December 31, 2005.
(iii) Neither Seller nor the Transferred Companies with respect to the Transferred Companies has executed or filed any agreement or other document extending the period for assessment, reassessment or collection of any amounts of Taxes that will be in force after the Closing Date, and no power of attorney granted by the Transferred Companies or Seller with respect to the Transferred Companies prior to the Closing Date will remain in effect after the Closing Date. Neither Seller nor the Transferred Companies with respect to the Transferred Companies is a party to or bound by any closing agreement, offer in compromise, or similar agreement with any Taxing Authority. Neither Seller nor the Transferred Companies with respect to the Transferred Companies is a party to any Action by any Taxing Authority. To the knowledge of Seller, there are no pending or threatened Actions by any Taxing Authority.
(iv) There are no Liens for any Taxes upon the properties or assets of the Transferred Companies or on the Company Shares or the Gateway Shares, other than for current Taxes not yet due and payable.
(v) There are no Tax rulings, requests for rulings, closing agreements or other similar agreements (including any gain recognition agreements under Section 367 of the Code and applications for a material change in accounting method or to change the basis for determining items under Section 481 or Section 807 of the Code) in effect or filed with any Tax Authority relating to the Transferred Companies which could affect the Transferred Companies' liability for Taxes for any taxable period (or portion thereof) after the Closing Date.
(vi) The Transferred Companies have not received a written tax opinion with respect to any transaction relating to the Transferred Companies other than a transaction in the ordinary course of business.
(vii) No claim is pending or, to the Knowledge of Seller, threatened by a Tax Authority in a jurisdiction where the Transferred Companies do not file Tax Returns or pay Taxes that the Transferred Companies are or may be subject to Tax in that jurisdiction.
(viii) The Transferred Companies are not a party to or bound by any tax indemnity, tax sharing or tax allocation agreement.
(ix) The Transferred Companies (A) have not ever been a member of any affiliated group of corporations, within the meaning of Section 1504 of the Code, other than the group of which the Transferred Companies are is presently a member or (B) do not have liability for the Taxes of any Person under Section 1.1502 6 of the Treasury Regulations (or any similar provision of state, local, or foreign Law), as a transferee or successor, by Contract, or otherwise.
(x) The Transferred Companies are not a party to any Contract or plan that has resulted or could result, separately or in the aggregate, in the payment of (i) any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign Tax law) or (ii) any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of state, local or foreign Tax Law).
(xi) The Transferred Companies have not ever been a United States real property 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.
(xii) The Transferred Companies have not ever been a party to any joint venture, partnership or other Contract that could reasonably be expected to be treated as a partnership for tax purposes.
(xiii) The Transferred Companies 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, stockholder, or other third party, and complied with all information reporting, backup withholding provisions and similar provisions of applicable Tax Law.
(xiv) The Transferred Companies have sufficient information contained in their records to calculate any taxable income or allowable loss that may arise as the result of the disposition of properties or assets owned by the Transferred Companies at the Closing Date.
(xv) The Transferred Companies have not engaged in or been a “material advisor” or “promoter” (as those terms are defined in Sections 6111 and 6112 of the Code and the U.S. Treasury Regulations promulgated thereunder) with respect to any “reportable transaction” within Section 6011 of the Code and Section 1.6011 4 of the Treasury Regulations.
(xvi) The Transferred Companies have not 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 tax free treatment under Section 355 of the Code (1) in the two (2) years prior to the date of this Agreement, and each such Tax Return is correct and complete Agreement or (2) in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (a distribution which could otherwise constitute part of a “plan” or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date “series of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" related transactions” (within the meaning of Section 1504(b355(e) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither ) in conjunction with the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parenttransactions contemplated by this Agreement.
(ixvii) With respect The Transferred Companies will not be required to completed pay periods, include any adjustment in taxable income for any Tax period or portion thereof after the Company and each Closing Date under Section 481(c) or 807(f) of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Code (or any similar provision of the Tax Authority, proper amounts in all material respects with all Tax withholding provisions Laws of applicable lawany jurisdiction).
(jxviii) Seller has delivered to Buyer complete and correct schedules, as of September 30, 2012 of the Tax attributes of the Transferred Companies. No power Tax attribute of attorney the Transferred Companies is currently in force with respect subject to any matter relating to Taxes that could affect the Company a limitation under Section 382 or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) 383 of the Code.
(xix) The Transferred Companies 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 as a result of any: (A) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (B) 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 foreign income Tax Law); (C) installment sale or open transaction disposition made on or prior to the Closing Date; or (D) prepaid amount received on or prior to the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlas Financial Holdings, Inc.), Stock Purchase Agreement (Atlas Financial Holdings, Inc.)
Taxes. Except as set forth otherwise disclosed in Section 3.16 3.9 of the Company Disclosure ScheduleSchedule and for matters that would not have a Company Material Adverse Effect:
(a) Each of the The Company and each of its Subsidiaries has (i) duly have timely filed (or there have been had timely filed on its their behalf) with the appropriate Tax Authorities (as hereinafter defined) ), or will file or cause to be timely filed, all material Tax Returns (as hereinafter defined) required by applicable law to be filed by it on or any of them prior to or as of the Closing Date. As of the time of filing, the foregoing Tax Returns correctly reflected the material facts regarding the income, business, assets, operations, activities, status, or other matters of the Company or any other information required to be shown thereon. In particular, the foregoing Tax Returns are not subject to penalties under Section 6662 of the Code, relating to accuracy related penalties (or any corresponding provision of the state, local or foregoing Tax law) or any predecessor provision of law. An extension of time within which to file a Tax Return that has not been filed has not been requested or granted.
(b) The Company and each of its Subsidiaries have paid (or have had paid on their behalf), or, where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse) an adequate accrual for the payment of, all material Taxes due with respect to any period ending prior to or as of the Closing Date. The Company and each of 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 Company Employee, independent contractor, consultant, creditor, stockholder, or other third party.
(c) As of the date of this Agreement, and each such no Audit by a Tax Return Authority is correct and complete in all material respects and (ii) duly paid in full pending or, made adequate accruals and reserves in its books and records in accordance to the knowledge of the Company, threatened with GAAP with full provision (respect to any Tax Returns filed by, or there Taxes due from, the Company or any Subsidiary. To the knowledge of the Company, no issue has been paid raised by any Tax Authority in any Audit of the Company or such provision has been made on any of its behalf Subsidiaries that if raised with respect to any other period not so audited could be expected to result in a material proposed deficiency for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to any period not so audited. As of the date of this Agreement, except no material deficiency or adjustment for those any Taxes being contested in good faith.
(b) has been proposed, asserted, assessed, or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries. There are no Liens liens for Taxes upon any property or the assets of the Company or any Subsidiary thereofof its Subsidiaries, except liens for Liens for current Taxes not yet due delinquent. For purposes of this Agreement, phrases such as “knowledge of the Company” and for which adequate reserves have been established in accordance with GAAP with full provision made for similar terms mean the payment thereofcurrent knowledge of any officer of the Company.
(cd) Neither the Company nor any of its Subsidiaries has made given or been requested to give any change in accounting methodswaiver of statutes of limitations relating to the payment of Taxes or have executed powers of attorney with respect to Tax matters, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effectwhich will be outstanding as of the Closing Date.
(de) No Audit (as hereinafter defined) by a Prior to the date hereof, the Company and its Subsidiaries have disclosed, and provided or made available true and complete copies to Breitling of, all material Tax Authority is presently pending with regard sharing, Tax indemnity, or similar agreements to any Taxes or Tax Returns of which the Company or any of its Subsidiaries andare a party to, to the knowledge of the Companyis bound by, no such Audit is threatenedor has any obligation or liability for Taxes.
(ef) An Audit Except as set forth in Section 3.9(f) of each United States federal income Tax Return the Company Disclosure Schedule, and except for the group of which the Company is currently a member, the Company has never been a member of an affiliated group of corporations, within the meaning of Section 1504 of the Code.
(g) The Company has not agreed to make nor is it required to make any adjustment under Section 481(a) of the Code by reason of change in accounting method or otherwise.
(h) None of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities a liability for Taxes of any Person under Regulation Section 1.1502-6 (or the applicable statutes any similar provision of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996state, and no adjustments were asserted local or foreign law), as a result of such Audits which have not been finally resolved and fully paidtransferee or successor, by contract or otherwise.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(gi) Neither the Company nor any of its Subsidiaries is a party tohas distributed stock of another Person, or is bound byhas had its stock distributed by another Person, any agreement, arrangement in a transaction that also purported or policy relating intended to the allocation, indemnification be governed in whole or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company part by Code Sections 355 and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law361.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated has (i) participated (within the meaning of Treasury Regulations § 1.6011-4(c)(3)) in connection with any “reportable transaction” within the closing meaning of the Merger for the payment Treasury Regulations § 1.6011 4(b) (and all predecessor regulations); (ii) claimed any deduction, credit, or other tax benefit by reason of any amount described in “tax shelter” within the meaning of former Section 162(m)(16111(c) of the CodeCode and the Treasury Regulations thereunder or any “confidential corporate tax shelter” within the meaning of Former Section 6111(d) of the Code and the Treasury Regulations thereunder; or (iii) purchased or otherwise acquired an interest in any “potentially abusive tax shelter” within the meaning of Treasury Regulations § 301.6112-1. To the knowledge of the Company, the Company and its Subsidiaries have disclosed on their Tax Returns all positions taken therein that could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code (or any similar provision of state, local or foreign law).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Bering Exploration, Inc.)
Taxes. Except as set forth in Section 3.16 of 3.08 to the Company Disclosure ScheduleSchedule and except for such matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company:
(a) Each of the The Company and its Subsidiaries has subsidiaries (i) have duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter definedincluding, but not limited to, those filed on a consolidated, combined or unitary basis) required to be have been filed by it on the Company or prior to the date its subsidiaries, all of this Agreement, which Tax Returns are true and each such Tax Return is correct and complete in all material respects and correct; (ii) duly have within the time and manner prescribed by applicable Law paid all Taxes, required to be paid in full orrespect of the periods covered by such Tax Returns or otherwise due to any Governmental Authority; (iii) have established in accordance with their normal accounting practices and procedures, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) that are adequate for the payment ofof all Taxes not yet due and payable; (iv) are not delinquent in the payment of any Tax; and (v) have not received written notice of any deficiencies for any Tax from any Governmental Authority against the Company or any of its subsidiaries, which deficiency has not been satisfied. Neither the Company nor any of its subsidiaries is the subject of any currently ongoing Tax audit. Neither the Company nor any of its subsidiaries has requested, or been granted, an extension of time in which to file Tax Returns or pay Taxes, which extension has continuing effect. With respect to any taxable period ended prior to January 1, 1999, all federal income Tax Returns including the Company or any of its subsidiaries have been audited by the Internal Revenue Service or are closed by the applicable statute of limitations. Neither the Company nor any of its subsidiaries is or may be subject to any “accuracy-related penalty” under § 6662 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any comparable provision of state, local or foreign Law) with respect to Tax periods for which Tax Returns have been filed. Neither the Company nor any of its subsidiaries is subject to any extension of the statute of limitations for collection of Taxes for all periods ending on under Code § 6501 (or prior any comparable provision of state, local, or foreign Law) from the minimum period allowed by Law as a result of failure to the date of this Agreementaccurately complete, except for those Taxes being contested in good faith.
(b) or to disclose any items in, a Tax Return. There are no Liens for liens with respect to Taxes upon any property of the properties or assets assets, real or personal, tangible or intangible, of the Company or any Subsidiary thereof, except for Liens of its subsidiaries (other than liens for Taxes not yet due and for which adequate reserves have due). No claim has ever been established made in accordance with GAAP with full provision made for writing by a Governmental Authority in a jurisdiction where the payment thereofCompany or its subsidiaries do not file Tax Returns that the Company or any of its subsidiaries is or may be subject to taxation by that jurisdiction.
(cb) Neither the Company nor any of its Subsidiaries subsidiaries is obligated by any contract, agreement or other arrangement to indemnify any other person with respect to Taxes. Neither the Company nor any of its subsidiaries is now or has made ever been a party to or bound by any change in accounting methodscontract, received a ruling from agreement or other arrangement (whether or not written and including, without limitation, any arrangement required or permitted by applicable Law (including pursuant to Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law)) that (i) requires the Company or any of its subsidiaries to make any Tax Authority payment to or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
for the account of any other person, (dii) No Audit (as hereinafter defined) by a affords any other person the benefit of any net operating loss, net capital loss, investment Tax Authority is presently pending with regard to credit, foreign Tax credit, charitable deduction or any Taxes other credit or Tax Returns attribute which could reduce Taxes (including, without limitation, deductions and credits related to alternative minimum Taxes) of the Company or any of its Subsidiaries andsubsidiaries, or (iii) requires or permits the transfer or assignment of income, revenues, receipts or gains to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996subsidiaries from any other person, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable other than payments made to the assessment or payment Company and its subsidiaries in the ordinary course of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) business. Neither the Company nor any of its Subsidiaries is a party tosubsidiaries will be required to include any item of income in, or is bound byexclude any item of deduction from, taxable income for any agreement, arrangement taxable period (or policy relating portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the allocationClosing Date; (ii) “closing agreement” as described in Code § 7121 (or any comparable provision of state, indemnification local, or sharing foreign Law); (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Code § 1502 (or any comparable provision of Taxes.
state, local, or foreign Law); (hiv) The Company, as installment sale or open transaction disposition made on or prior to the common parent of an affiliated group of corporations Closing Date; or (as defined in Section 1504 of v) prepaid amount received on or prior to the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither Closing Date. Neither the Company nor any of such Subsidiaries has been its subsidiaries is a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect party to any matter relating to Taxes that could affect the Company “gain recognition agreement” as described in Treasury Regulation § 1.367(a)-8 (or any analogous provision of its Subsidiaries.
(k) foreign Law). Neither the Company nor any Subsidiary shall become obligated of it subsidiaries is a party to any transaction that is or was (i) since January 1, 1998 intended to qualify under Code sections 355 or 368 (other than as a recapitalization pursuant to Code § 368(a)(1)(E)), or (ii) required to be reported as a “listed transaction” to any Governmental Authority under Treasury Regulation § 1.6011-4(b)(2) (or any comparable or predecessor provision of federal, state, local or foreign Law).
(c) The Company and its subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with the closing amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) For purposes of the Merger for the payment this Agreement, (i) “Tax” (and, with correlative meaning, “Taxes”) means any federal, state, local or foreign income, gross receipts, property, sales, use, license, excise, franchise, employment, payroll, premium, withholding, alternative or added minimum, ad valorem, inventory, transfer or excise tax, or any other tax, custom, duty, governmental fee or other like assessment or charge of any amount described in Section 162(m)(1kind whatsoever, together with any interest or penalty, imposed by any Governmental Authority, and (ii) “Tax Return” means any return, report or similar statement required to be filed with respect to any Tax (including any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of the Codeestimated Tax.
Appears in 2 contracts
Sources: Merger Agreement (Infousa Inc), Merger Agreement (Onesource Information Services Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each Selling Fund has elected to be a regulated investment company under Subchapter M of the Company Code and is a fund that is treated as a separate corporation under Section 851(g) of the Code. Since inception, Selling Fund has qualified for treatment as a regulated investment company for each taxable year that has ended prior to the Closing Date and will have satisfied the requirements of Part I of Subchapter M of the Code to maintain such qualification for the period beginning on the first day of its Subsidiaries current taxable year and ending on the Closing Date. Selling Fund has no earnings and profits accumulated in any taxable year in which the provisions of Subchapter M of the Code did not apply to it. In order to (i) duly filed ensure continued qualification of Selling Fund for treatment as a "regulated investment company" for tax purposes and (ii) eliminate any tax liability of Selling Fund arising by reason of undistributed investment company taxable income or there net capital gain, the Trust will declare on or prior to the Valuation Date to the shareholders of Selling Fund a dividend or dividends that, together with all previous such dividends, shall have been filed on its behalf) with the appropriate Tax Authorities effect of distributing (as hereinafter definedA) all Tax of Selling Fund's investment company taxable income (determined without regard to any deductions for dividends paid) for the taxable year ended October 31, 2007 and for the short taxable year beginning on November 1, 2007 and ending on the Closing Date and (B) all of Selling Fund's net capital gain recognized in its taxable year ended October 31, 2007 and in such short taxable year (after reduction for any capital loss carryover).
(b) Selling Fund has timely filed all Returns (as hereinafter defined) required to be filed by it on and all Taxes with respect thereto have been paid, except where the failure so to file or prior so to pay, would not reasonably be expected, individually or in the date of this Agreementaggregate, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such to have a Material Adverse Effect. Adequate provision has been made on its behalf in the Selling Fund Financial Statements for its sole benefit and recourse) for the payment of, all Taxes for in respect of all periods ending ended on or prior to before the date of this Agreementsuch financial statements, except for those Taxes being contested where the failure to make such provisions would not reasonably be expected, individually or in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereofaggregate, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) . No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to deficiencies for any Taxes have been proposed, assessed or Tax Returns of the Company or asserted in writing by any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996taxing authority against Selling Fund, and no adjustments were asserted as deficiency has been proposed, assessed or asserted, in writing, where such deficiency would reasonably be expected, individually or in the aggregate, to have a result Material Adverse Effect. No waivers of the time to assess any such Audits which have not been finally resolved and fully paid.
(f) There Taxes are no agreements, consents or outstanding nor are any written requests for such waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, pending and no power Return of attorney applicable to either the Company Selling Fund is currently being or any of its Subsidiaries has been audited with respect to income taxes or other Taxes by any Taxes is in forceFederal, state, local or foreign Tax authority.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Gardner Lewis Investment Trust), Agreement and Plan of Reorganization (Gardner Lewis Investment Trust)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there All material Tax Returns required to have been filed by or with respect to the AMP Entities and the AMP Business have been timely filed (taking into account any valid extension of time to file granted or obtained) and such Tax Returns are true, correct and complete in all material respects.
(b) All material amounts of Taxes owed by the AMP Entities (whether or not shown on its behalfany Tax Return) have been fully and timely paid other than Taxes which are not yet due and payable and which have been adequately accrued and reserved in accordance with GAAP or IFRS, as applicable. Since the date of the most recent AMP Consolidated Financial Statements, none of the AMP Entities have incurred any material Tax liability outside the ordinary course of business other than Taxes resulting from the Transactions.
(c) There are no pending Actions against any AMP Entity for any material amount of Taxes, and no AMP Entity has received notice of any such Action in writing from any Taxing Authority that asserts any deficiency or claim for a material amount of Taxes against any AMP Entity, that has not been fully and timely paid, settled or adequately reserved in the most recent AMP Consolidated Financial Statements. 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 any AMP Entity and no written request for any such waiver or extension is currently pending, other than, in each case, any such extensions or agreements entered into in the ordinary course of business.
(d) To the Knowledge of Ardagh as of the date hereof, no claim has been made within the prior three (3) years by any Taxing Authority in a jurisdiction where any of the AMP Entities do not file Tax Returns that any AMP Entity is or may be subject to taxation by, or required to file Tax Returns in, such jurisdiction.
(e) There are no Tax liens on any assets of any of the AMP Entities or the AMP Business (other than Permitted Liens).
(f) The AMP Entities have withheld and fully and timely paid to the appropriate Tax Authorities (as hereinafter defined) Governmental Authority all Tax Returns (as hereinafter defined) material amounts of Taxes required to be filed have been withheld and paid by it on any such AMP Entity 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 applicable Law with respect to such Taxes.
(g) None of the AMP Entities have constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the last two years prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(bh) There are no Liens for Taxes upon any property or assets Except as set forth in Section 4.13(h) of the Company Ardagh Disclosure Schedule, none of the AMP Entities have executed or entered into a closing agreement pursuant to Section 7121 of the Code or any Subsidiary thereofsimilar provision of federal, except for Liens for Taxes not yet due state, provincial or local Law, and for which adequate reserves have been established in accordance with GAAP with full provision made for none of the payment thereofAMP Entities are subject to any private letter ruling of the IRS or comparable ruling of any other Taxing Authority.
(ci) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns None of the Company AMP Entities will be required to include any amounts in income in, or exclude any items of its Subsidiaries anddeduction from, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal taxable income for any Post-Closing Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted Period as a result of such Audits which have not been finally resolved and fully paidany: (i) adjustment pursuant to Section 481 of the Code (or any corresponding or similar provision of state, provincial or local Law) as a result of a change in method of accounting occurring prior to the Closing; (ii) intercompany transactions or excess loss account described in U.S. Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, provincial or local Law) made or existing prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing; or (iv) prepaid amount received or deferred revenue realized prior to the Closing.
(fj) There are no agreements, consents or waivers to extend None of the statutory period of limitations applicable to AMP Entities have elected the assessment or installment method for the payment of any Taxes or deficiencies against incurred pursuant to Section 965 of the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in forceCode.
(gk) Neither None of the Company nor AMP Entities has been a party to any “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b).
(l) None of the AMP Entities has any material liability for the Taxes of any Person (other than Ardagh and its Subsidiaries Affiliates) under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) as a transferee or successor, by Contract or otherwise.
(m) None of the AMP Entities is a party to, or is bound by, any agreement, arrangement or policy relating to the Tax allocation, Tax sharing or Tax indemnification or sharing agreement (other than customary provisions in agreements entered into in the ordinary course of business the primary purpose of which does not relate to Taxes).
(hn) The CompanyTo the Knowledge of Ardagh, as there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the common parent of an affiliated group of corporations (as defined in Section 1504 Merger, taken together with the PIPE Investment and all or a portion of the Codesteps in the Pre-Closing Restructuring from qualifying for the Intended Tax Treatment.
(o) consisting solely There is no plan or intention to dissolve or liquidate GHV (including a liquidation for Tax purposes) following the Transactions.
(p) Ardagh has made available to GHV true, correct and complete copies of all material income tax returns filed by or with respect to all AMP Entities for tax years ending on or after December 31, 2017.
(q) To the Knowledge of Ardagh as of the Company and date hereof, none of the Subsidiaries that are "includable corporations" (AMP Entities has been at any time during the five-year period ending on the Closing Date, a “United States real property holding corporation” within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periods, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable law.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1897(c)(2) of the Code.
(r) None of the AMP Entities currently expects to be or in prior taxable years has been a “passive foreign investment company” within the meaning of Section 1297(a) of the Code.
(s) Except as set forth in Section 4.13(s) of the Ardagh Disclosure Schedule, to the Knowledge of Ardagh as of the date hereof, there are no Ardagh Consolidated Groups that require by applicable Law an Ardagh/AMPSA Group Tax Return to be filed in a Post-Closing Tax Period.
Appears in 2 contracts
Sources: Business Combination Agreement (Ardagh Metal Packaging S.A.), Business Combination Agreement (Gores Holdings v Inc.)
Taxes. The representations and warranties made by the Company in this Section 7.15 are the only representations and warranties made by the Company in this Agreement with respect to Tax matters. Except as set forth otherwise disclosed in Section 3.16 7.15 of the Company Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has (i) duly filed (or there have been has had filed on its their behalf) with the appropriate Tax Authorities (as hereinafter defined) and will file or cause to be timely filed, all material Tax Returns (as hereinafter defined) required by applicable Law to be filed by it on or prior to or as of the date Closing Date. As of this Agreementthe time of filing, the foregoing Tax Returns correctly reflected the material facts regarding the income, business, assets, operations, activities, status, or other matters of the Company and each such its Subsidiaries or any other information required to be shown thereon. An extension of time within which to file a Tax Return is correct for the Company or its Subsidiaries that has not been filed has not been requested or granted.
(b) Each of the Company and complete in all material respects and (ii) duly its Subsidiaries has paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been had paid on its behalf), or such provision where payment is not yet due has been made established (or has had established on its behalf and for its sole benefit and recourse) ), or will establish or cause to be established on or before the Closing Date, an adequate accrual for the payment of, all material Taxes for all periods due with respect to any period ending on or prior to or as of the date of this Agreement, except for those Taxes being contested in good faithClosing Date.
(bc) No Audit by a Tax Authority is pending or to the Knowledge of the Company, threatened, with respect to any Tax Returns filed by, or Taxes due from, the Company or its Subsidiaries. No issue has been raised by any Tax Authority in any Audit of the Company or its Subsidiaries that if raised with respect to any other period not so audited could reasonably be expected to result in a material proposed deficiency for any period not so audited. No unsatisfied material deficiency or adjustment for any Taxes has been proposed, asserted, assessed or to the Knowledge of the Company, threatened, against the Company or its Subsidiaries. There are no Liens for Taxes upon any property or the assets of the Company or any Subsidiary thereofits Subsidiaries, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereofPermitted Encumbrances.
(cd) Neither the Company nor any of its Subsidiaries has made given or been requested to give any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard waiver of statutes of limitations relating to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any the payment of Taxes or has executed any power of attorney with respect to Tax Returns matters that will be outstanding as of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatenedClosing Date.
(e) An Audit Prior to the date hereof, the Company has disclosed and provided or made available true and complete copies to Investor of each United States federal income all material Tax Return of sharing, Tax indemnity, or similar agreements to which the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, or has any agreement, arrangement obligation or policy relating to the allocation, indemnification or sharing of liability for Taxes.
(hf) The Company, as No Company employees or other personnel are entitled to receive any additional payment from the common parent Company or any of an affiliated group of corporations (as defined in Section 1504 its Subsidiaries by reason of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of excise Tax required by Section 1504(b4999(a) of the Code), has filed since 1994 a consolidated return IRC being imposed on such person by reason of the transactions contemplated by this Agreement.
(g) Except for United States federal income Tax purposes on behalf the group of itself and such Subsidiaries and neither which the Company nor any of such Subsidiaries is currently a member, the Company has never been a member of an affiliated group filing a consolidated United States federal Tax Return other than of corporations, within the affiliated group in which they are currently members and meaning of which Section 1504 of the Company is the common parentIRC.
(ih) With respect to completed pay periods, The Company is not a “foreign person” within the Company and each meaning of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawIRC Section 1445.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Ram Energy Resources Inc)
Taxes. Except as set forth in Section 3.16 Exhibit 3.11, all federal, state and other tax returns of Rx Medical and its subsidiaries required by law to be filed have been timely filed, and Rx Medical and its subsidiaries have paid or provided for all taxes (including taxes on properties, income, franchises, licenses, sales and payrolls) which have become due pursuant to such returns or pursuant to any assessment, except for any taxes and assessments of which the amount, applicability or validity is currently being contested in good faith by appropriate proceedings and with respect to which Rx Medical and its subsidiaries have set aside on its books reserves deemed to be adequate. The amounts set up as provisions for taxes on the Rx Medical Financial Statements are sufficient for the payment of all unpaid federal, state, county and local taxes accrued for or applicable to the period then ended and all periods prior thereto for which Rx Medical or any of its subsidiaries may be liable, except for any taxes and assessments of which the amount, applicability or validity is currently being contested in good faith by appropriate proceedings and with respect to which Rx Medical or its subsidiary, as the case may be, has set aside on its books reserves deemed to be adequate. There are no tax liens on any of the Company Disclosure Schedule:
(a) Each property of Rx Medical or any of its subsidiaries except those with respect to taxes not yet due and payable and except for any taxes and assessments of which the Company amount, applicability or validity is currently being contested in good faith by appropriate proceedings and with respect to which Rx Medical or its subsidiary, as the case may be, has set aside on its books reserves deemed to be adequate. Rx Medical and its Subsidiaries has subsidiaries have withheld from each payment made to employees the amount of all taxes (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all Tax Returns (as hereinafter definedincluding, but not limited to, federal, state and local income taxes and Federal Insurance Contribution Act taxes) required to be filed by it on or prior to the date of this Agreementwithheld therefrom and all amounts customarily withheld therefrom, and each such Tax Return is correct and complete in have set aside all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (other employee contributions or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all Taxes for all periods ending on or prior to the date of this Agreement, except for those Taxes being contested in good faith.
(b) There are no Liens for Taxes upon any property or assets of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for which adequate reserves have been established in accordance with GAAP with full provision made for the payment thereof.
(c) Neither the Company nor any of its Subsidiaries has made any change in accounting methods, received a ruling from any Tax Authority or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse Effect.
(d) No Audit (as hereinafter defined) by a Tax Authority is presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and, to the knowledge of the Company, no such Audit is threatened.
(e) An Audit of each United States federal income Tax Return of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 1996, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries payments customarily set aside with respect to any Taxes is in force.
(g) Neither such wages and have paid or will pay the Company nor any of its Subsidiaries is a party same to, or is bound by, any agreement, arrangement have deposited or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and will deposit such Subsidiaries and neither the Company nor any of such Subsidiaries has been a member of an affiliated group filing a consolidated United States federal Tax Return other than the affiliated group in which they are currently members and of which the Company is the common parent.
(i) With respect to completed pay periodspayment with, the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid to the proper tax receiving officers or other appropriate Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawauthorities.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect the Company or any of its Subsidiaries.
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger for the payment of any amount described in Section 162(m)(1) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Churchill Technology Inc), Merger Agreement (Churchill Technology Inc)
Taxes. Except as set forth in Section 3.16 of the Company Disclosure Schedule:
(a) Each of the Company and its the Company Subsidiaries has (i) duly filed (or there have been filed on its behalf) with the appropriate Tax Authorities (as hereinafter defined) all federal Income Tax Returns (and all other material Tax Returns that it was required to file under applicable laws and regulations. All such Tax Returns as hereinafter defined) so filed disclose all material Taxes required to be filed by it on or prior to the date of this Agreement, and each such Tax Return is correct and complete in all material respects and (ii) duly paid in full or, made adequate accruals and reserves in its books and records in accordance with GAAP with full provision (or there has been paid or such provision has been made on its behalf for its sole benefit and recourse) for the payment of, all periods covered thereby. All material Taxes due and owing by Company or the Company Subsidiaries (whether or not shown on any Tax Return) have been paid. There are no Liens for all periods ending on Taxes (other than Taxes not yet due and payable or prior to the date of this Agreement, except for those Taxes that are currently being contested in good faithfaith and that have been reserved for on the 2009 Balance Sheet in accordance with GAAP) upon any assets of the Company or any of the Company Subsidiaries. Each of the Company and the Company Subsidiaries 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 and all material Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.
(b) There are is no Liens for Taxes upon material dispute or claim concerning any property or assets Tax liability of the Company or any Subsidiary thereof, except for Liens for Taxes not yet due and for of the Company Subsidiaries either (A) claimed or raised by any authority in writing or (B) as to which adequate reserves have been established in accordance with GAAP with full provision made for there is any knowledge of the payment thereofCompany.
(c) Section 4.15(c) of the Disclosure Schedule lists all income Tax Returns filed with respect to the Company or any Company Subsidiaries for taxable periods ended on or after January 31, 2007, in material jurisdictions, as that latter term was defined for purposes of Footnote 7 to the Company’s consolidated financial statements as set forth in Form 10-K for the period ended January 31, 2009. Section 4.15(c) also indicates those income Tax Returns with respect to taxable periods ended on or after January 31, 2003 filed in material jurisdictions that have been audited, and indicates those income Tax Returns filed in material jurisdictions that currently are the subject of audit. The Company has made available to Purchaser correct and complete copies of all federal Income Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by the Company and any of the Company Subsidiaries since January 31, 2006. Neither the Company nor any of its the Company Subsidiaries has waived any statutes of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. Neither the Company nor any Company Subsidiary has received written notice of any claim made by a Governmental Authority in a jurisdiction in which the Company or any change in accounting methodsCompany Subsidiary does not file Tax Returns, received a ruling from any Tax Authority that the Company or signed an agreement with regard to Taxes reasonably likely to have a Company Material Adverse EffectSubsidiary is or may be required to file Tax Returns or to pay Taxes to that jurisdiction.
(d) No Audit The Transactions (as hereinafter definedincluding the Offer and Merger) will not result in the payment or series of payments by a Tax Authority is presently pending with regard the Company or any of the Company Subsidiaries to any Taxes person of an “excess parachute payment” within the meaning of Section 280G of the Code, or any similar payment, that is not deductible for federal, state, local or foreign Tax Returns purposes. Additionally, there is no contract to which the Company or any of the Company Subsidiaries is a party that, individually or collectively, (i) could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) or Section 280G of the Code, (ii) is subject to Section 409A of the Code, or (iii) could require the Company, the Company Subsidiaries or Parent or its subsidiaries to gross up a payment to any employee of the Company or any of its the Company Subsidiaries and, to the knowledge for Tax related payments or cause a penalty tax under Section 409A of the Company, no such Audit is threatenedCode.
(e) An Audit of each United States federal income Tax Return The accruals and reserves for Taxes reflected in the 2009 Balance Sheet are adequate to cover all Taxes accruable through such date in accordance with GAAP. Since the date of the Company or any of its Subsidiaries has been completed by the applicable Tax Authorities (or the applicable statutes of limitation for the assessment of Taxes for such periods have expired) for all periods through and including 19962009 Balance Sheet, and no adjustments were asserted as a result of such Audits which have not been finally resolved and fully paid.
(f) There are no agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment or payment of any Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney applicable to either the Company or any of its Subsidiaries with respect to any Taxes is in force.
(g) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any agreement, arrangement or policy relating to the allocation, indemnification or sharing of Taxes.
(h) The Company, as the common parent of an affiliated group of corporations (as defined in Section 1504 of the Code) consisting solely of the Company and the Subsidiaries that are "includable corporations" (within the meaning of Section 1504(b) of the Code), has filed since 1994 a consolidated return for United States federal income Tax purposes on behalf of itself and such Subsidiaries and neither the Company nor any of such the Company Subsidiaries has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice, and the reserve set forth on the face of the 2009 Balance Sheet (rather than in any notes thereto), as adjusted for the passage of time through the Effective Time in accordance with the past custom and practice of the Company and the Company Subsidiaries, is adequate to cover all Taxes accruable through the Effective Time in accordance with GAAP, excluding in each case any Taxes arising from the Transactions.
(f) None of the Company or the Company Subsidiaries has been a member of an affiliated group filing a consolidated United States federal included in any “consolidated,” “unitary” or “combined” Tax Return (other than the affiliated group in which they are currently members and of Tax Returns for which the Company is the common parent) provided for under the laws of the U.S., any foreign jurisdiction or any state or locality with respect to Taxes for any taxable year and neither Company nor any Company Subsidiary has any obligation to contribute to the payment of any Tax of any person other than the Company or a Company Subsidiary under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as transferee, successor, by contract or otherwise.
(g) None of the Company or any of the Company Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the two years prior to the date of this Agreement (or will constitute such a corporation in the two years prior to the Effective Time) or that otherwise constitutes part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with the Offer and the Merger.
(h) The Company has not been a U.S. Real Property Holding Corporation (“USRPHC”) within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(i) With respect to completed pay periods, None of the Company and each of its Subsidiaries has withheld from its employees, independent contractors, creditors, stockholders, customers and third parties, and timely paid nor any Company Subsidiary is a party to the appropriate or bound by any Tax Authority, proper amounts in all material respects with all Tax withholding provisions of applicable lawallocation or sharing agreement.
(j) No power of attorney is currently in force with respect to any matter relating to Taxes that could affect Neither the Company or nor any Company Subsidiary has engaged in a “reportable transaction” as defined in Section 6707A(c)(1) of its Subsidiariesthe Code and Treasury Regulation Section 1.6011-4(b).
(k) Neither the Company nor any Subsidiary shall become obligated in connection with the closing of the Merger Company 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 payment Effective Time as a result of any amount (A) change in the method of accounting for a taxable period ending on or prior to the Effective Time, (B) “closing agreement” as described in Section 162(m)(1) 7121 of the CodeCode (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Effective Time, (C) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 (or any corresponding or similar provision of state, local, or non-U.S. income Tax law) executed on or prior to the Effective Time, (D) installment sale or open transaction disposition made on or prior to the Effective Time, or (E) prepaid amount received on or prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)