Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid. (b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes. (c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries. (d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid. (e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries. (f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes. (g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes). (h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries. (i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction. (j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2). (k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code. (l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 4 contracts
Sources: Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD)
Taxes. (a) All material The Company and each of its Subsidiaries, and ----- any consolidated, combined or unitary group for tax purposes of which the Company or any of its Subsidiaries is or has been a member, has timely filed, taking into account all extensions of time to file, all Tax Returns required to be filed by it in the manner provided by law, except any Tax Return with respect to which no material Taxes were due. All such filed Tax Returns are true, correct and complete in all material respects. The Company and each of its Subsidiaries have timely paid all Taxes shown as due on such Tax Returns, except and, for Taxes that are adequately reserved for on the Company financial statements in accordance with generally accepted accounting principles, for which a notice of deficiency has been received. The Company and each of its Subsidiaries have timely withheld and paid over to the appropriate taxing authority where due all Taxes required to be withheld from amounts owing to any employee, creditor or third party. Except as set forth in the Company Disclosure Schedule, (a) no claim for material unpaid Taxes has become a Lien against the property of the Company or any of its Subsidiaries or is being asserted against the Company or any of its Subsidiaries; (b) no audit, examination, investigation or other proceeding is pending, being conducted, or to the knowledge of the Company, threatened by a Tax authority in connection with any examination of Taxes paid by or on behalf of, or Tax Returns filed by or on behalf of, the Company and its Subsidiaries; (c) no extension or waiver of the statute of limitations on the assessment of any Taxes has been granted by the Company or any of its Subsidiaries and is currently in effect; (d) neither the Company nor any of its Subsidiaries is a party to, is bound by, or has any obligation under, or potential liability with regards to, any Tax sharing agreement, Tax indemnification agreement or similar contract or arrangement and neither the Company nor any Subsidiary has any liability for Taxes under Treasury Regulation Section 1.1502-6 (or an analogous provision of state, local or foreign law), other than Taxes of the Company and its Subsidiaries; (e) no power of attorney has been granted by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material matter relating to Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
; (f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action material deferred intercompany gain or agreed to take loss arising as a result of a deferred intercompany transaction within the meaning of Treasury Regulation Section 1.1502-13 (or similar provision under state, local or foreign law) or any action, nor to excess loss accounts within the knowledge meaning of Treasury Regulation Section 1.1502-19; and (g) neither the Company or nor any of its Subsidiaries are there any facts has been the subject of a Tax ruling or circumstances, determination that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenthas continuing effect.
Appears in 4 contracts
Sources: Merger Agreement (Merck & Co Inc), Merger Agreement (Merck & Co Inc), Merger Agreement (Provantage Health Services Inc)
Taxes. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Each of the Company and its Subsidiaries has (i) timely filed all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) The To the knowledge of the Company, there are no U.S. federal, state, local or non-U.S. audits or examinations of any Tax Return of the Company or its Subsidiaries pending and each neither the Company nor any Subsidiary has received written notice of any such audit or examination. No claim for unpaid Taxes has been asserted in writing against the Company or any of its Subsidiaries have withheld from amounts owing to by a Governmental Authority, other than any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have claim that has been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesresolved.
(c) There are no Liens for outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets of deficiencies against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification written agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of Taxes, except for any such agreement agreements that (i) are solely between the Company and and/or any of its existing Subsidiaries and customary commercial Contracts Subsidiaries, (or Contracts ii) will terminate as of the Closing, (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes or (iv) are Tax allocation, indemnity or warranty provisions contained in commercial contracts the principal subject matter of which is not primarily related Taxes.
(e) Neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(f) There are no Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Documents, except for Permitted Liens.
(g) Since October 31, 2015, none of the Company or any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or any similar provision of state, local or non-U.S. Law). The Company and each of its Subsidiaries have complied with applicable Law relating to the withholding and payment of Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into has been in the ordinary course of businesspast five (5) not primarily related to Taxes) or (ii) has ever been years a member of an affiliated, consolidated, combined or unitary a group filing for U.S. federal, state or local income Tax purposes, (other than a group the common parent of which was is the Company or is one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return or (ii) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous applicable provision of state, local or non-U.S. Law or as a transferee or successor.
(i) Within To the past three (3) yearsknowledge of the Company, as of the date of this Agreement, no written claim has ever been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Returns Return that it is or may be subject to taxation in Tax by that jurisdiction.
(j) Neither the The Company nor any of and its Subsidiaries has participated in a “listed transaction” within the meaning have operated and are operating to comply with all applicable transfer pricing Laws and all terms and conditions of Treasury Regulation 1.6011-4(b)(2)any Tax exemption, Tax holiday or other Tax reduction agreement or order.
(k) The Company has not beenNotwithstanding any other representations and warranties in this Agreement, is notthe representations and warranties in this Section 3.17 and in Section 3.08, Section 3.11(a), Section 3.12, Section 3.13 and immediately prior to Section 3.18 constitute the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by sole representations and warranties in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed with respect to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentmatters.
Appears in 3 contracts
Sources: Purchase Agreement (Patheon N.V.), Purchase Agreement (Thermo Fisher Scientific Inc.), Purchase Agreement (Patheon N.V.)
Taxes. (a) All The Company and each of its Subsidiaries:
(i) has prepared in good faith and has duly and timely filed (taking into account any extension of time within which to file) all income Tax Returns and other material Tax Returns required to be filed by or by, with respect to the Company to, or on behalf of any of its Subsidiaries have been timely filed (taking into account them with any applicable extensions)Governmental Entity, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and ;
(ii) has timely paid all material Taxes due and payable (Taxes, whether or not shown on any Tax Return) , that are required to be paid by any of them at or prior to the date hereof except with respect to matters contested in good faith by appropriate proceedings and for which adequate reserves have been paidestablished in accordance with GAAP;
(iii) has timely deducted, withheld and remitted (or accounted for) to the proper Governmental Entities all material Taxes required to have been deducted, withheld and remitted (or accounted for) by any of them in connection with amounts paid or owing to any person, including to any employee, creditor, person that is or is deemed to be a non-resident of Canada (for purposes of the Tax Act) or a non-resident with respect to any paying Subsidiary’s jurisdiction of residence or other third party, in compliance with all applicable Laws related to Taxes, except with respect to matters contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; and
(iv) has not waived any statute of limitations with respect to any material Taxes, agreed to any extension of time with respect to the assessment, reassessment or collection of a material Tax.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeThere are not pending or, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets knowledge of the Company or any of its Subsidiaries.
(d) No claimCompany, assessmentthreatened, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved any audits, examinations, investigations or unpaidother proceedings in respect of Taxes or Tax matters.
(ec) There is The Company and its Subsidiaries have charged, collected and remitted on a timely basis all material Taxes as required under applicable Law on any sale, supply or delivery whatsoever, made by any of them.
(d) To the knowledge of the Company, no material Tax audit or other examination of the Company or deficiencies have been asserted by any of its Subsidiaries presently in progress Governmental Entity with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(e) The terms and conditions made or imposed in respect of every transaction (or series of transactions) between the Company or any Subsidiary and any person that is not dealing at arm’s length with the Company or such Subsidiary, as the case may be, do not materially differ from those that would have been made between persons dealing at arm’s length, and each of the Company and each Subsidiary has complied in all material respects with the transfer pricing requirements of any applicable Law.
(f) Neither Adequate provision has been made on the consolidated financial statements of the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither all Taxes assessed and all Taxes owing by the Company nor or any of its Subsidiaries has made a change of any method of accounting with respect Subsidiary that are not yet due and payable and relate to any Taxesperiods ending prior to the date hereof.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately within the six months that precede the date of this Agreement, made any “investment”, as that term is defined for purposes of proposed section 212.3 of the Tax Act, in any corporation that is, or will be prior to the Share Exchange Closing will not beEffective Time, treated as an a “investment companyforeign affiliate” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any for purposes of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentAct.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) filed all material federal, state, local and foreign Tax Returns returns and reports (collectively, “Tax Returns”) required to be filed by it, and all such Tax Returns were correct and complete in all material respects, and (ii) paid and discharged all material Taxes required to be paid or discharged. The most recent financial statements contained in the Company SEC Reports reflect a reserve in accordance with GAAP for all Taxes payable by the Company or any of its Subsidiaries for all taxable periods or portions thereof through the date of such financial statements. Since the date of the most recent financial statements contained in the Company SEC Reports, no Taxes have accrued with respect to the Company or any of its Subsidiaries other than Taxes accrued in the ordinary course of business. Each of the Company and its Subsidiaries has withheld all Taxes required to be withheld by it and such withheld Taxes have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidpaid to the proper taxing authority.
(b) The Except as described in Section 4.16(b) of the Company and each Disclosure Letter:
(i) no contract or other document waiving or extending the statute of limitations or the period of assessment or collection of any Taxes has been filed or entered into by the Company or any of its Subsidiaries have withheld from amounts owing to with any employeetaxing authority;
(ii) no taxing authority is now asserting in writing or, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required Company’s knowledge, threatening to have been so paid over and complied in all assert against the Company or any of its Subsidiaries any material respects with all applicable withholding and related reporting requirements with respect to such deficiency or claim for additional Taxes.;
(ciii) There there are no Liens pending material audits of the Company or any of its Subsidiaries by any taxing authority; and
(iv) there are no Encumbrances for Taxes (other than Permitted LiensEncumbrances) upon any of the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(gc) Neither the Company nor any of its Subsidiaries is a party to any Tax contract providing for the allocation or sharing of, or indemnification or Tax sharing or similar Tax agreement (other than from, Taxes with any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) person. Neither the Company nor any of its Subsidiaries (i) is liable has any liability for the Taxes of any other Person (other than the Company and its Subsidiaries) another person under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law), or as a transferee or successor successor, by contract, or otherwise. There are no outstanding requests by Contract the Company or any of its Subsidiaries for any Tax ruling from any taxing authority and neither the Company nor any of its Subsidiaries has (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessi) not primarily related to Taxes) received a Tax ruling or (ii) has ever been entered into any closing agreement or other similar contract with a member taxing authority relating to Taxes of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries, in each case, effective with respect to a taxable period for which the statute of limitations is still open or a taxable period ending after the date of the Closing. The Company is not, nor was it any time during the five-year period ending on the date hereof, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code. The utilization of the net operating losses and tax credits of the Company and its Subsidiaries is not subject to any limitation under Section 382 or Section 383 of the Code or the “separate return limitation year” rules of the consolidated return regulations. Neither the Company nor any of its Subsidiaries has distributed the stock of another company in a transaction that was purported or intended to be governed by Section 355 or Section 361 of the Code. Neither the Company nor any of its Subsidiaries has engaged in any listed or other reportable transaction within the meaning of Treasury Regulations § 1.6011-4(b).
(id) Within To the past three (3) yearsCompany’s knowledge, no written claim has been made by any Governmental Authority where tax authority of a jurisdiction in which the Company or any of its Subsidiaries does not file Tax Returns has asserted that it is or may be subject obligated to taxation file Tax Returns in that jurisdiction.
(j) . Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, been or is not, and immediately prior required to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of make any adjustment pursuant to Section 368(a)(2)(F481(a) of the Code.
(l) Except as contemplated Code or any similar provision of state, local or foreign tax law by this Agreement reason of any change in any accounting method, there is no application pending with any taxing authority requesting permission for any change in any accounting method for Tax purposes and the Transactions contemplated hereby, neither no taxing authority has proposed in writing any such adjustment or change in accounting method. Neither the Company nor any of its Subsidiaries has taken any action will be required to include in the gross income of a taxable period ending after the Closing Date income or agreed gain attributable to take any actioncash received, nor to the knowledge or an account receivable that arose, in a prior taxable period and that was not recognized in that prior taxable period, as a result of the Company installment method, the completed contract method or the cash method of accounting or any other method of its Subsidiaries are there any facts or circumstances, accounting that could reasonably be expected to prevent defers the Transactions from qualifying for the Intended Tax Treatmentrecognition of income.
Appears in 3 contracts
Sources: Merger Agreement (Selectis Health, Inc.), Merger Agreement (Sl Industries Inc), Merger Agreement (Handy & Harman Ltd.)
Taxes. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Each of the Company and its Subsidiaries has (i) timely filed all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) To the knowledge of the Company, there are no U.S. federal, state, local or non-U.S. audits or examinations of any Tax Return of the Company or its Subsidiaries pending and neither the Company nor any Subsidiary has received written notice of any such audit or examination. No claim for unpaid Taxes has been asserted in writing against the Company or any of its Subsidiaries by a Governmental Authority, other than any claim that has been resolved.
(c) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so withheld from payments made to its employees, independent contractors, creditors, shareholders and other Third Parties and, to the extent required, such Taxes have been paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthe relevant Governmental Authority.
(cd) There are no Liens for outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets of deficiencies against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification written agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of Taxes, except for any such agreement agreements that (i) are solely between the Company and and/or any of its existing Subsidiaries and customary commercial Contracts Subsidiaries, (or Contracts ii) will terminate as of the Closing, (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes or (iv) are Tax allocation, indemnity or warranty provisions contained in commercial contracts the principal subject matter of which is not primarily related Taxes.
(f) There are no Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Documents, except for Permitted Liens.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to Taxesbe governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into has been in the ordinary course of businesspast five (5) not primarily related to Taxes) or (ii) has ever been years a member of an affiliated, consolidated, combined or unitary a group filing for U.S. federal, state or local income Tax purposes, (other than a group the common parent of which was is the Company or is one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return or (ii) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or non-U.S. Law or as a transferee or successor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Taxes. (ai) All material Tax Each of the Company and its subsidiaries has timely filed all Returns required to be filed by or it with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company Governmental Authority and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over Return was complete and complied correct in all material respects at the time of filing.
(ii) Each of the Company and its subsidiaries has paid or caused to be paid to the appropriate Governmental Authority on a timely basis all Taxes which are due and payable, all assessments and reassessments and all other Taxes as are due and payable by it, other than those which are being or have been contested in good faith pursuant to applicable Laws, and in respect of which, in the reasonable opinion of the Company, adequate reserves or accruals in accordance with all applicable withholding and related reporting requirements IFRS have been provided in the Financial Statements.
(iii) No audit, action, investigation, deficiencies, litigation, proposed adjustments have been asserted or, to the knowledge of the Company, threatened with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither subsidiaries, and neither the Company nor any of its Subsidiaries subsidiaries is a party to any action or proceeding for assessment or collection of Taxes and no such event has made a request for been asserted or, to the knowledge of the Company, threatened.
(iv) To the knowledge of the Company no Return of the Company or entered into a closing agreementany of its subsidiaries is under investigation, private letter rulingreview, advance tax ruling audit or similar agreement with examination by any Governmental Authority taxing authority with respect to any Taxes. Neither , and no written notice of any investigation, review, audit or examination by any taxing authority has been received by the Company nor or any of its Subsidiaries has made a change of any method of accounting subsidiaries with respect to any Taxes.
(gv) Neither the Company nor any of its Subsidiaries is a party No Lien for Taxes has been filed or exists with respect to any Tax indemnification assets or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course properties of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessubsidiaries other than for Taxes not yet due and payable or Liens for Taxes that are being contested in good faith by appropriate proceedings.
(ivi) Within There are no currently effective elections, agreements or waivers extending the past three (3) yearsstatutory period or providing for an extension of time with respect to the assessment or reassessment of any Taxes, no written claim has been made the filing of any Return or any payment of Taxes by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionsubsidiaries.
(jvii) Neither the Company nor any of its Subsidiaries has participated Except as set out in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F3.1(z)(vii) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyExeter Disclosure Letter, neither the Company nor any of its Subsidiaries subsidiaries has taken made, prepared and/or filed any action elections, designations or agreed similar filings relating to take Taxes or entered into any actionagreement or other arrangement in respect of Taxes or Returns that could, nor in and of itself, require a material amount to be included in the knowledge income of the Company or any of its Subsidiaries subsidiaries for any period ending after the Effective Time.
(viii) All Taxes that the Company or its subsidiaries has been required to withhold have been duly withheld and have been duly and timely paid to the proper Governmental Authority. Each of the Company and its subsidiaries has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes, payroll taxes and other Taxes payable by it in respect of its employees, agents and consultants, as applicable, and has remitted such amounts to the appropriate Governmental Authority within the time required under applicable Laws. Each of the Company and its subsidiaries have, to the extent required under applicable Laws, duly charged, collected and remitted on a timely basis all Taxes on any sale, supply or delivery whatsoever, made by them.
(ix) There are no Tax rulings relating to the Company or any of its subsidiaries which may affect the Company’s or any of its subsidiaries’ liability for Taxes for any taxable period commencing after the Effective Time.
(x) For all transactions between the Company or its subsidiaries and any Person who is not resident in Canada for purposes of the Tax Act with whom the Company or its subsidiaries was not dealing at arm’s length for purposes of the Tax Act, the Company or its subsidiaries has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act (or comparable provisions of any other applicable legislation).
(xi) No circumstances exist or may reasonably be expected to arise as a result of matters existing before the Effective Time that may result in the Company or any of its subsidiaries being subject to the application of Section 159 or Section 160 of the Tax Act (or comparable provisions of any other applicable legislation).
(xii) None of Sections 78 or 80 to 80.04 of the Tax Act (or comparable provisions of any other applicable legislation) have applied to the Company or any of its subsidiaries, and there any facts or circumstances, that are no circumstances existing which could reasonably be expected to prevent result in the Transactions from qualifying for application of Sections 78 or 80 to 80.04 of the Intended Tax TreatmentAct (or comparable provisions of any other applicable legislation) to the Company or any of its subsidiaries.
(xiii) The Company has not issued any “flow-through shares” (as defined in subsection 66(15) of the Tax Act).
(xiv) The Company does not have an accrued liability under Section 211.91 of the Tax Act in respect of which the Company is late in incurring or renouncing exploration expenses.
(xv) There are no circumstances which exist and would result in, or which have existed and resulted in, Section 17 of the Tax Act applying to the Company or to any of its subsidiaries.
(xvi) None of the Company or any of its subsidiaries is obligated to make any payments or is a party to any agreement under which it could be obligated to make any payment that will not be deductible in computing its income under the Tax Act by virtue of Section 67 of the Tax Act.
(xvii) The Company is a “taxable Canadian corporation” within the meaning of subsection 89(1) of the Tax Act.
Appears in 3 contracts
Sources: Support Agreement (Goldcorp Inc), Support Agreement (Exeter Resource Corp), Support Agreement (Goldcorp Inc)
Taxes. (a) All (i) The Company and each of its Subsidiaries have duly and timely filed or caused to be filed all income Tax Returns and all other material foreign, federal, state, and local Tax Returns required to be filed by or with respect to any of them; (ii) each of such filed Tax Returns (taking into account all amendments thereto) is true, complete and accurate in all material respects; (iii) all Taxes due and owing by the Company and each of its Subsidiaries (whether or not shown to be due on any Tax Returns) have been timely paid in full; (iv) neither the Company nor any of its Subsidiaries is currently the beneficiary of any extension of time within which to file any Tax Return; and (v) no claim has ever been made by a Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to taxation by that jurisdiction in respect of Taxes that would be covered by or the subject of such Tax Return.
(i) Neither the Company nor any of its Subsidiaries has received written notice of any audit, assessment, examination or other Action from any Taxing Authority and there are no pending or threatened audits, assessments, examinations or other Actions from any Taxing Authority, in each case, in respect of liabilities for Taxes of the Company or any of its Subsidiaries, which have not been fully paid or settled; (ii) there are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens; (iii) with respect to any tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries (nor any predecessor of the Company or any of its Subsidiaries) has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any Tax, nor has any request been made in writing for any such extension or waiver; and (iv) no deficiencies for Taxes with respect to the Company or any of its Subsidiaries have been timely filed (taking into account claimed, proposed or assessed by any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTaxing Authority.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made engaged in or been a request party to a transaction that is or is substantially similar to any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or non-U.S. Tax law in any tax year for or entered into a closing agreementwhich the statute of limitations has not expired.
(d) The unpaid Taxes of the Company and its Subsidiaries did not, private letter rulingas of the December 31, advance tax ruling or similar agreement with 2023 exceed the reserve for Tax liability (excluding any Governmental Authority with respect reserve for deferred Taxes established to Taxesreflect timing differences between book and Tax income) set forth on the face of the consolidated financial statements of the Company included in the Company SEC Documents (rather than in any notes thereto). Neither Since the December 31, 2023, neither the Company nor any of its Subsidiaries has made a change incurred any liability for Taxes outside the ordinary course of business.
(e) The Company and each of its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any method employee, independent contractor, creditor, stockholders of accounting the Company (or any of its Subsidiaries) or other Person.
(f) No power of attorney with respect to any TaxesTaxes of the Company or any of its Subsidiaries is currently in force.
(g) Neither the Company nor any of its Subsidiaries is has ever been a party to any member of an affiliated group filing a consolidated federal income Tax indemnification or Tax sharing or similar Tax agreement Return (other than a group the common parent of which is the Company) or any such agreement solely between similar group for federal, state, local or non-U.S. Tax purposes. Neither the Company and nor any of its existing Subsidiaries and customary commercial Contracts has any liability for the Taxes of any Person (other than Taxes of the Company or its Subsidiaries) (i) under Treasury Regulations Section 1.1502-6 (or Contracts entered into in the ordinary course any similar provision of businessstate, local or non-U.S. law), (ii) not primarily related to Taxes)as a transferee or successor, or (iii) by Contract.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of is, or has been, a party to or bound by any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than excluding customary Tax indemnification provisions in commercial Contracts (or Contracts entered into in the ordinary course of business) business not primarily related relating to Taxes).
(i) Neither the Company nor any of its Subsidiaries is a partner for Tax purposes with respect to any joint venture, partnership, or (ii) has ever been other arrangement or Contract which is treated as a member of an affiliated, consolidated, combined or unitary group filing partnership for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is . No entity classification election pursuant to Treasury Regulations Section 301.7701-3 has been filed with respect to the Company or any of its Subsidiaries.
(i. Section 4.16(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where of the Company or any Disclosure Letter sets forth the entity classification, for U.S. federal and applicable state income tax purposes, of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictioneach Subsidiary of the Company.
(j) Neither the Company nor any of its Subsidiaries has participated will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of use of the installment sale or open transaction method to report a disposition on or prior to the Closing Date, adjustment under Section 481 of the Code resulting from any accounting method change or improper use of an accounting method or agreement with any Tax Authority filed or made on or prior to the Closing Date, any prepaid amount or deferred revenue received on or prior to the Closing, any intercompany transaction or excess loss account described in a “listed transaction” within Section 1502 of the meaning Code (or any corresponding provision of Treasury Regulation 1.6011state, local or non-4(b)(2)U.S. Tax law) or any election under Section 965(h) of the Code.
(k) The None of the Company and any of its Affiliates or predecessors by merger or consolidation has not beenbeen a party to any transaction intended to qualify under Section 355 of the Code at any time in the last two years.
(l) Neither the Company nor any of its Subsidiaries (i) has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code or has ever filed or been the subject of an election pursuant to Section 897(i) of the Code; (ii) has been a or a shareholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, is notlocal or foreign law); (iii) has been a “personal holding company” as defined in Section 542 of the Code (or any similar provision of state, and immediately prior to the Share Exchange Closing will not be, treated as an local or non-U.S. law); (iv) has been a or a shareholder of a “passive foreign investment company” within the meaning of Section 368(a)(2)(F1297 of the Code; or (v) has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.
(m) No Subsidiary of the Company is or has been treated as an “expatriated entity” or “surrogate foreign corporation” under Section 7874 of the Code. No Subsidiary of the Company is or has at any time been a corporation treated as a domestic corporation pursuant to Section 7874 of the Code.
(ln) Except Each of the Company and its Subsidiaries has complied with all transfer pricing rules in all material respects. All documentation required by all relevant transfer pricing laws has been timely prepared by the Company and its Subsidiaries and, if necessary, retained.
(o) The Company has provided or made available to Parent all documentation relating to, and is in full compliance with all terms and conditions of, any Tax exemption, Tax holiday, Tax incentive or other Tax reduction agreement or order of a territorial or non-U.S. government.
(p) No Subsidiary of the Company has engaged in any “extraordinary disposition” or “extraordinary reduction” as contemplated such terms are defined in Treasury Regulations Section 1.245A-5, nor is a successor to any “extraordinary disposition account” pursuant to Treasury Regulations Section 1.245A-5.
(q) No Subsidiary of the Company that is a foreign corporation owned within the meaning of Section 958(a) by this Agreement and the Transactions contemplated hereby, neither Company or a United States Subsidiary of the Company owns United States property within the meaning of Section 956 of the Code.
(r) Neither the Company nor any of its Subsidiaries (i) has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, action that could would reasonably be expected to prevent the Transactions Mergers from qualifying for the Intended Tax Treatment or (ii) has any Knowledge of any fact or circumstance that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment, in each case, other than as contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Matterport, Inc./De), Merger Agreement (Costar Group, Inc.), Merger Agreement (Matterport, Inc./De)
Taxes. (a) All material Tax Returns required to be filed by Seller for any pre-Closing Tax period have been, or with respect to the Company or any of its Subsidiaries have been will be, timely filed (taking into account any applicable extensions), all such filed. Such Tax Returns (taking into account all amendments thereto) are are, or will be, true, complete and correct and complete in all material respects, and all material . All Taxes due and payable owing by Seller (whether or not shown on any Tax Return) have been been, or will be, timely paid.
(b) The Company Seller has withheld and paid each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts Tax required to have been so withheld and paid over in connection with amounts paid or owing to any Employee, independent contractor, creditor, customer, member or other party, and complied in all material respects with all information reporting and backup withholding provisions of applicable withholding and related reporting requirements with respect to such TaxesLaw.
(c) There are no Liens for No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its SubsidiariesSeller.
(d) No claimAll deficiencies asserted, assessmentor assessments made, deficiency or proposed adjustment for against Seller as a result of any material amount of Tax has been asserted in writing or assessed examinations by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidtaxing authority have been fully paid.
(e) There Seller is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect not party to any material Taxesclaim, nor has the Company action, demand, inquiry, audit, notice of violation, proceeding, citation, subpoena, or any of its Subsidiaries been notified in writing investigation of any request nature (whether civil, criminal, administrative or threat for such an audit or other examination, and there otherwise) by any taxing authority. There are no waiverssuch pending or , extensions to the Knowledge of Seller, threatened claims, actions, demands, inquiries, audits, notices, proceedings, citations, subpoenas or written requests for investigations by any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariestaxing authority.
(f) Neither the Company nor There are no Encumbrances for Taxes upon any of its Subsidiaries has made a request the Purchased Assets nor, to the Knowledge of Seller, is any taxing authority in the process of imposing any Encumbrances for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor Taxes on any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesthe Purchased Assets (other than for current Taxes not yet due and payable).
(g) Neither the Company nor any of its Subsidiaries Seller is not, and has not been, a party to any Tax indemnification to, or Tax sharing or similar Tax agreement (other than any such agreement solely between a promoter of, a “reportable transaction” within the Company meaning of Section 6707A(c)(1) of the Code and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to TaxesTreasury Regulations Section 1.6011 4(b).
(h) Neither None of the Company nor any of its Subsidiaries (i) Purchased Assets is liable for Taxes of property that Seller is required to treat as being owned by any other Person (other than pursuant to the Company and its Subsidiariesso-called “safe harbor lease” provisions of former Section 168(f)(8) under Treasury Regulation Section 1.1502-6 or any similar provision of statethe Internal Revenue Code of 1954, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesamended.
(i) Within None of the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it Purchased Assets is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011tax-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” exempt use property within the meaning of Section 368(a)(2)(F168(h) of the Code.
(lj) Except as contemplated by this Agreement This Section 5.8 represents the sole and the Transactions contemplated hereby, neither the Company nor any exclusive representation and warranty of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Seller regarding Tax Treatmentmatters.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Northland Cable Properties Eight Limited Partnership), Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Taxes. (a) All material Tax Returns required to be filed prior to the Closing Date by or with respect to the Company Purchased Companies or any of its Subsidiaries the Business have been duly and timely filed (taking into account any applicable extensions)filed, and all such Tax Returns Returns, as amended (taking into account all amendments thereto) are if applicable), were true, correct and complete in all material respectsrespects when filed. As of the Effective Date and except as set forth in Section 4.14(a) of the Seller Disclosure Letter, and all no Purchased Company has requested any extension of time within which to file any material Taxes due and payable (whether or Tax Return that has not shown on any Tax Return) have yet been paidfiled.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all All material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements by or with respect to the Purchased Companies or the Business have been duly and timely paid, other than such TaxesTaxes as are being contested in good faith by or on behalf of a Purchased Company or an Asset Seller.
(c) There are no Liens for All material Taxes that (other than Permitted Liensi) upon the property or assets of the a Purchased Company or any of its Subsidiaries(ii) in connection with the Business, an Asset Seller, in each case, has been required to collect or withhold have been duly collected or withheld and have been or will be timely and duly paid to the proper Governmental Authority.
(d) No claim, assessment, deficiency statute of limitations in respect of material Taxes of the Purchased Companies or proposed adjustment for any material amount of Tax the Business has been asserted in writing waived. No material Tax or assessed Tax Return of the Purchased Companies or the Business is under audit or examination by any Governmental Authority against the Company Taxing Authority, and no written notice of such an audit or examination has been received by Parent or any of its Subsidiaries that remains unresolved or unpaidAffiliates.
(e) There is are no material Tax audit or other examination of the Company Encumbrances for Taxes upon any Acquired Asset or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing asset of any request or threat for such an audit or Purchased Company other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesthan Permitted Encumbrances.
(f) Neither None of the Company nor Purchased Companies have any of its Subsidiaries has made a request liability for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiariessuch Purchased Company, Parent or Parent’s Affiliates) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), (ii) as a transferee or successor successor, or (iii) by Contract (other than customary commercial Contracts including under any Tax sharing agreement).
(g) None of the Purchased Companies has engaged in any “listed transactions” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(h) None of the Purchased Companies has constituted either a “distributing corporation” or Contracts entered into a “controlled corporation” in a transaction intended to be governed by Section 355 of the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group Code within the common parent of which was or is the Company or any of its Subsidiariespast two years.
(i) Within None of the past three Purchased Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for the post-Closing portion of any Straddle Tax Period or Post-Closing Tax Period as a result of (3i) yearsany change in method of accounting for a Pre-Closing Tax Period pursuant to Section 481(a) of the Code, no (ii) any installment sale or open transaction, (iii) any prepaid amount received or paid or (iv) any election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law) made with respect to any Pre-Closing Tax Period.
(j) None of the Purchased Companies is or has been within the five-year period described by Section 897(c)(1) of the Code a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(k) No written claim has been made by any Governmental Authority where the Company to Parent or any of its Subsidiaries Affiliates by a Taxing Authority in a jurisdiction where any Purchased Company does not file Tax Returns that it such Purchased Company (i) has or has had a permanent establishment in that jurisdiction or (ii) is or may be subject to taxation in by that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries , in each case, which claim has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The not been subsequently withdrawn. No Purchased Company has a permanent establishment in any jurisdiction where such Purchased Company does not beenfile Tax Returns and the Tax Liability related to that Tax Return, is notif filed, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codewould be material.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge Section 4.14(l) of the Company or any Seller Disclosure Letter sets forth the U.S. federal income tax classification of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenteach Purchased Company.
Appears in 3 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries (i) have prepared in good faith and timely filed, taking into account any extension of time within which to file, all material Tax Returns required to be filed (or such Tax Returns have been filed on their behalf) with the appropriate Governmental Authority and all such Tax Returns are complete and accurate in all material respects, (ii) have paid all Taxes required to have been paid by them other than Taxes that are not yet due or that are being contested in good faith in appropriate proceedings and have been adequately reserved in accordance with U.S. GAAP, and (iii) have withheld from and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor creditor, stockholder, independent contractor or other Person all material Taxes required by applicable Law to be withheld, paid over to third party;
(b) neither the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements Company nor any of its Subsidiaries has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency and there has been no request by a Governmental Authority to execute such Taxes.a waiver or extension;
(c) There to the Knowledge of the Company, no deficiency with respect to Taxes has been proposed, asserted or assessed against the Company or any of its Subsidiaries, and there are no pending or threatened in writing disputes, claims, audits, examinations or other proceedings regarding Taxes of the Company and its Subsidiaries or the assets of the Company and its Subsidiaries;
(d) there are no Liens for Taxes (other than Permitted Liens) upon the any property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.other than Permitted Liens;
(e) There is no the Company has made available to Parent copies of all U.S. federal consolidated income and other material Tax audit or other examination of Returns filed by the Company or any of and its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.all open taxable years;
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) no claim has ever been made (that has not been resolved) by a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority in any jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it the Company or any of its Subsidiaries is or may be subject to taxation by such jurisdiction;
(g) neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries or such an agreement or arrangement entered into in that jurisdiction.the ordinary course of business and not relating primarily to Taxes);
(h) neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (ii) has any liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of Law), as a transferee or successor or by contract or otherwise;
(i) the Company has made available to Parent copies of any material private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes requested or executed in the last six years;
(j) Neither neither the Company nor any of its Subsidiaries has participated in a any “listed reportable transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).4(b)(1) or any other transaction requiring disclosure under analogous provisions of Tax Law;
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action been, within the past two years, or agreed to take any action, nor to otherwise as part of a “plan (or series of related transactions)” within the knowledge meaning of Section 355(e) of the Code of which this Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify in whole or in part for tax-free treatment under Section 355 of the Code;
(l) neither the Company or nor any of its Subsidiaries are there will be required to include any facts item of income in, or circumstancesexclude material item of deduction from, that could reasonably be expected taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting under Section 481 of the Code (or any similar provision of state, local or foreign Law), or change in the basis for determining any item referred to prevent in Section 807(c) of the Transactions from qualifying Code, for a taxable period ending on or prior to the Intended Tax TreatmentClosing Date, (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) prepaid amount received on or prior to the Closing Date outside of the ordinary course of business, or (iv) any election under Section 108(i) of the Code; and
(m) no amount payable pursuant to this Agreement is subject to withholding under Section 1445 of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Ocwen Financial Corp), Merger Agreement (Ocwen Financial Corp), Merger Agreement (PHH Corp)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries SPAC have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have SPAC has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for any material Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its SubsidiariesSPAC.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries SPAC that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries SPAC presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries SPAC been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesSPAC.
(f) Neither the Company nor any of its Subsidiaries SPAC has not made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries SPAC has not made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries SPAC is not a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither SPAC has not been a party to any transaction treated by the Company nor any parties as a distribution of its Subsidiaries stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) SPAC (i) is not liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever never been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesSPAC.
(ij) Within the past three (3) yearsSince its inception, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries SPAC does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries SPAC has not participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebyTransactions, neither the Company nor any of its Subsidiaries SPAC has not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries SPAC are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Merger Agreement (Blue World Holdings LTD), Merger Agreement (Blue World Acquisition Corp), Merger Agreement (Blue World Holdings LTD)
Taxes. (a) All The Company and the Subsidiaries each has correctly prepared and duly and timely made or filed, or caused to be made or filed, all United States federal, and applicable state, provincial, local and non-U.S. Tax returns, reports and declarations required by any jurisdiction to which it is subject and has paid all Taxes and other governmental assessments and charges that are material Tax Returns in amount, required to be filed paid by it, regardless of whether such amounts are shown or with respect determined to be due on such returns, reports and declarations, except those being contested in good faith by appropriate proceedings and for which it has set aside on its books provision reasonably adequate for the payment of all Taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid Taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and, to the knowledge of the Company, there is no basis for any such claim. Each of the Company or any of its and the Subsidiaries have been timely filed (taking into account any applicable extensions)has collected, withheld and remitted all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor the property taxing or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) governmental authority. There are no Liens for Taxes (other than Permitted Liens) upon the property audits, assessments, reassessments, suits, proceedings, investigations or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority claims pending against the Company or any of its the Subsidiaries that remains unresolved in respect of Taxes paid or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationpayable, and there are no waivers, extensions matters under discussion with any taxing or written requests for any waivers or extensions governmental authority of any statute of limitations currently in effect with respect to any material Taxes of jurisdiction involving the Company or any Subsidiary with, or the subject of its Subsidiaries.
(f) Neither the Company nor any agreement with, any taxing or governmental authority relating to claims for additional Taxes. There are no agreements, waivers or other arrangements providing for an extension of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority time with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change assessment or reassessment of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owing by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any subsidiary, the filing of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made any tax returns by any Governmental Authority where the Company or any Subsidiary or the payment of its Subsidiaries does not file any Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentSubsidiary.
Appears in 3 contracts
Sources: Purchase Agreement (BitNile Holdings, Inc.), Purchase Agreement (BitNile Holdings, Inc.), Securities Purchase Agreement (Siyata Mobile Inc.)
Taxes. Except as set forth in Section 3.12 of the Parent Disclosure Schedule:
(a) All material Tax Returns required to be filed by or with respect to the Company on behalf of Parent, each of its Subsidiaries, and each affiliated, combined, consolidated or unitary group of which Parent or any of its Subsidiaries is a member have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all .
(b) All material Taxes due payable by or with respect to Parent and payable each of its Subsidiaries (whether or not shown on any Tax Return) have been paid.
timely paid when due, and adequate reserves (bother than a reserve for deferred Taxes established to reflect timing differences between book and Tax treatment) The Company in accordance with GAAP are provided on the respective company's Balance Sheet for any material Taxes not yet due. All assessments for material Taxes due and owing by or with respect to Parent and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property completed and settled examinations or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has concluded litigation have been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) paid. Neither the Company Parent nor any of its Subsidiaries has made incurred a request for Tax liability from the date of the latest Balance Sheet other than a Tax liability in the ordinary course of business.
(c) No action, suit, proceeding, investigation, claim or entered into a closing agreement, private letter ruling, advance tax ruling audit has formally commenced and no written notice has been given that such audit or similar agreement with any Governmental Authority other proceeding is pending or threatened with respect to Parent or any of its Subsidiaries or any group of corporations of which any of Parent and its Subsidiaries has been a member in respect of any Taxes. , and all deficiencies proposed as a result of such actions, suits, proceedings, investigations, claims or audits have been paid, reserved against or settled.
(d) Neither the Company Parent nor any of its Subsidiaries has made a change requested, or been granted any waiver of any method federal, state, local or foreign statute of accounting limitations with respect to, or any extension of a period for the assessment of, any Tax. No extension or waiver of time within which to file any Tax Return of, or applicable to, Parent or any of its Subsidiaries has been granted or requested which has not since expired.
(e) Other than with respect to its Subsidiaries, Parent is not and has never been (nor does Parent have any Taxes.
(gliability for unpaid Taxes because it once was) Neither the Company a member of an affiliated, consolidated, combined or unitary group, and neither Parent nor any of its Subsidiaries is a party to any Tax indemnification allocation or Tax sharing agreement or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for the Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor successor, by Contract, or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(if) Within the past three (3) yearsParent and its Subsidiaries have not made any payments, no written claim has been made by are not obligated to make any Governmental Authority where the Company or payments, and are not a party to any agreements that under any circumstances could obligate any of its Subsidiaries does them to make any payments as a result of the transactions contemplated by this Agreement, that will not file Tax Returns that it is or may be subject to taxation in that jurisdictiondeductible under Section 280G of the Code.
(jg) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company Parent has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” been a United States real property holding corporation within the meaning of Section 368(a)(2)(F897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(lh) Except as contemplated Parent and each of its Subsidiaries have complied with all applicable Laws relating to the payment and withholding of Taxes (including, without limitation, withholding of Taxes pursuant to Sections 1441, 1442 and 3406 of the Code or similar provisions under any foreign Laws) and have, within the time and in the manner required by this Agreement Law, withheld from employee wages and paid over to the Transactions contemplated hereby, neither the Company proper Governmental Authorities all amounts required to be so withheld and paid over under all applicable Laws.
(i) Neither Parent nor any of its Subsidiaries has taken made an election under Section 341(f) of the Code.
(j) None of Parent and its Subsidiaries will be required to include any action material amount in taxable income for any taxable period (or agreed to take any action, nor portion thereof) ending after the Closing Date as a result of a change in the method of accounting for a taxable period ending prior to the knowledge Closing Date, any "closing agreement" as described in Section 7121 of the Company Code (or any corresponding provision of its Subsidiaries are there state, local or foreign Tax Laws) entered into prior to the Closing Date, any facts sale reported on the installment method that occurred prior to the Closing Date, or circumstances, any taxable income attributable to any amount that could reasonably be expected is economically accrued prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 3 contracts
Sources: Merger Agreement (Webmethods Inc), Merger Agreement (Webmethods Inc), Merger Agreement (Webmethods Inc)
Taxes. (a) All Each of the Company and each of its Subsidiaries has (i) duly and timely filed (taking into account extensions) with the appropriate Taxing Authorities all material Tax Returns required to be filed by it in respect of any Taxes, which Tax Returns were true, correct and complete in all material respects, (ii) duly and timely paid all Taxes shown as due and payable by it on such Tax Returns, (iii) established reserves in accordance with GAAP that are adequate for the payment of all material Taxes not yet due and payable with respect to the results of operations of the Company and each of its Subsidiaries through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books and (iv) complied in all material respects with all Laws applicable to the information reporting, payment and withholding of Taxes and has timely withheld and paid over to the respective proper Taxing Authorities all material Taxes required to be so withheld and paid over.
(b) There is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or threatened in writing against or with respect to the Company or any of its Subsidiaries in respect of any Taxes or Tax Returns, in each case, the resolution of which would reasonably be expected to result in a material liability or obligation to the Company or any Subsidiary of the Company and no requests for waivers of time to assess any such Taxes have been timely filed (taking into account granted and are still in effect, or are pending. Neither the Company nor any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing is liable for Taxes of any Person (other than the Company and its Subsidiaries) as a result of being (i) a transferee or successor of such Person, (ii) a member of an affiliated, consolidated, combined or unitary group that includes such Person as a member or (iii) a party to any employeea tax sharing, creditor tax indemnity, tax allocation or similar agreement, whether express or implied, other Person all material Taxes required by applicable Law to be withheld, paid over than contracts or agreements entered into in the ordinary course of business or pursuant to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesterms of commercial financing arrangements.
(c) There are no material Liens on any of the assets or properties of the Company or any of its Subsidiaries that arose in connection with any Tax (other than Liens for Taxes (i) not yet due and payable or (ii) being contested in good faith and for which adequate reserves have been established in accordance with GAAP on the Company Financial Statements).
(d) There are no Tax rulings, requests for rulings, closing agreements or other than Permitted Lienssimilar agreements or rulings with respect to material Taxes (including any gain recognition agreements under Section 367 of the Code or any application for a change in accounting method under Section 481 of the Code) upon the property in effect or assets of filed with any Taxing Authority relating to the Company or any of its Subsidiaries.
(de) No claimSince January 1, assessment2008, deficiency or proposed adjustment for any no material amount of Tax claim has been asserted made by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently such Subsidiary is or may be subject to Tax in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesjurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries transaction that is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into “listed transaction” as defined in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502§1.6011-6 4(b)(2). The transactions contemplated by this Agreement will not trigger any income or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related gain to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of for federal income tax purposes under Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated Code in respect of a distribution by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected occurring prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid, other than Taxes being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over amounts, and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for any material amount of Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidunpaid except for deficiencies being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(e) There is are no material Tax audit audits or other examination examinations of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of (nor to the knowledge of the Company has there been) any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for an advance tax ruling, a technical advice memorandum, a change of any method of accounting, or any similar request that is in progress or pending with any Governmental Authority with respect to any Taxes or requested, received, or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither any Taxes that would be binding on any of the Company nor or any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesafter the Closing Date.
(g) Neither the Company nor any of its Subsidiaries is a party to or has any liability under any Tax indemnification or Tax sharing agreement or similar any other agreement providing for payments in respect of Taxes or Tax agreement benefits (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) business not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) business not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority within the last thirty-six (36) months where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)Section 6707A(c)(2) of the Code.
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(ln) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has deferred the payment of any “applicable employment taxes” under Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act (or any similar provision of state, local or foreign Law) or claimed or received any Tax refund or credit thereunder or pursuant any other Tax legislation related to the COVID-19 pandemic that remains unpaid.
(o) The Company has not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code and the Treasury Regulations.
Appears in 3 contracts
Sources: Merger Agreement (Southport Acquisition Corp), Merger Agreement (Angel Studios, Inc.), Merger Agreement (Southport Acquisition Corp)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or, to the knowledge of the Company, oral, or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is are no ongoing or pending Legal Proceedings with respect to any material Tax audit or other examination Taxes of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationSubsidiaries, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither None of the Company nor or any of its Subsidiaries has made a request for or entered into a closing agreement, private letter an advance tax ruling, advance tax ruling request for technical advice, a request for a change of any method of accounting or any similar agreement request that is in progress or pending with any Governmental Authority with respect to Taxes. Neither any Taxes of the Company nor any of and its Subsidiaries has made a change of any method of accounting with respect to any TaxesSubsidiaries.
(g) Neither None of the Company nor or any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement (i) solely between the Company and its existing Subsidiaries and customary or (ii) commercial Contracts (or Contracts entered into in the ordinary course principal purpose of business) which is not primarily related to Taxes).
(h) Neither During the past three (3) years, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.
(i) None of the Company or any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course principal purpose of business) which is not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. United States federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesCompany.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither None of the Company nor or any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) None of the Company or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) None of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor or any of its Subsidiaries will be required to include any material amount in taxable income, exclude any material item of deduction or loss from taxable income, or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) instalment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Closing outside the ordinary course of business, (ii) prepaid amount received or deferred revenue recognized prior to the Closing outside the ordinary course of business, (iii) change in method of accounting for a taxable period ending on or prior to the Closing Date, (iv) “closing agreements” described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed prior to the Closing, or (v) by reason of Section 965(a) of the Code or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law), and to the knowledge of the Company, the IRS has not proposed any such adjustment or change in accounting method.
(n) The Company and its Subsidiaries have not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Taxes. (a) All Each of the Company and its Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all material Tax Returns required to be filed by it (in each case taking due account of lawful extensions validly obtained), and all such Tax Returns are true, complete and accurate in all material respects and disclose all material Taxes required to be paid by each of the Company and its Subsidiaries for the periods covered thereby. All material Taxes shown to be due on such Tax Returns have been timely paid or have been adequately reserved against on the Financial Statements in accordance with respect GAAP. All deficiencies asserted in writing or written assessments made as a result of any examination of such Tax Returns have been paid or otherwise resolved in full, or have been adequately reserved against on the Financial Statements. All Taxes that the Company and each of its Subsidiaries were required by Law to withhold or collect have been duly withheld or collected and, to the extent required, have been properly paid to the appropriate governmental authority.
(b) The most recent Financial Statements contained in the Filed SEC Documents reflect an adequate reserve, based on GAAP principles, for all material Taxes payable by the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing addition to any employee, creditor reserve for deferred Taxes to reflect timing differences between book and tax items) for all taxable periods and portions thereof through the date of such Financial Statements. There is no agreement or other Person all material document waiving or extending, or having the effect of waiving or extending, the period of assessment or collection of any Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements no power of attorney with respect to such Taxes.
(c) There are no Liens for any Taxes (other than Permitted Liens) upon the property has been executed or assets filed with any Taxing authority by or on behalf of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(ec) There is are no material Tax audit Liens for Taxes (other than for current Taxes not yet due and payable or other examination of Taxes being contested in good faith by the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has appropriate proceeding) on the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes assets of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is bound by any agreement with respect to Taxes, other than customary tax indemnification or other arrangements contained in any credit or other commercial agreements the primary purpose of which does not relate to Taxes.
(fd) Neither the Company nor any of its Subsidiaries has made constituted either a request “distributing corporation” or a “controlled corporation” (in each case within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither tax-free treatment under Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries Code (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course two years prior to the date of business) not primarily related to Taxes) this Agreement or (ii) has ever been in a member distribution which could otherwise constitute part of an affiliated, consolidated, combined a “plan” or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group “series of related transactions” (within the common parent meaning of which was or is Section 355(e) of the Company or any of its SubsidiariesCode) in conjunction with the Merger.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(je) Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2)) (or any corresponding or similar provision of state, local or foreign tax law) for any open tax year.
(kf) None of the Company or any Subsidiary has been a member of any group of corporations filing Tax Returns on a consolidated, combined, unitary or similar basis other than each such group of which it is currently a member.
(g) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as Shares are regularly traded on an “investment company” established securities market within the meaning of Section 368(a)(2)(F1445(b)(6) of the CodeCode (relating to “FIRPTA”).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Taxes. (a) All The Company and each of its Subsidiaries have (i) timely filed or caused to be timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)them, and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (ii) hereof, with respect to Taxes contested in good faith by appropriate Proceedings and for which adequate reserves or accruals have been paidestablished in accordance with GAAP.
(b) The unpaid Taxes of the Company and each its Subsidiaries did not, as of the date of their most recent consolidated financial statements included in the Company SEC Documents prior to the date of this Agreement, materially exceed the reserve or accrual for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of such consolidated financial statements (rather than in any notes thereto). Since the date of their most recent consolidated financial statements, neither the Company nor any of its Subsidiaries have withheld from amounts owing to has incurred any employee, creditor material liability for Taxes outside the ordinary course of business or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over otherwise inconsistent with past custom and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxespractice.
(c) There As of the date of this Agreement, there are no Liens for pending, threatened in writing or ongoing audits, examinations, investigations or other Proceedings by any Governmental Authority in respect of material Taxes (other than Permitted Liens) upon of or with respect to the property Company or assets any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has waived any statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency. No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Return that it is or may be subject to taxation by that jurisdiction in respect of Taxes that would be covered by or the subject of such Tax Return, nor has any such assertion been threatened or proposed in writing and received by the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against All Taxes that the Company or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other third parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of Neither the Company or nor any of its Subsidiaries presently in progress with respect to any material Taxeshas ever been a member of a consolidated, nor has combined or unitary Tax group (other than such a group the Company or any common parent of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of which is the Company or any of its Subsidiaries), and neither the Company nor any of its Subsidiaries has any liability for Taxes of any other Person (other than Taxes of the Company or any Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of foreign, state or local law), as a transferee or successor, by Contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax indemnification sharing, Tax allocation or Tax sharing indemnification agreement or similar Tax agreement arrangement (other than any such an agreement solely or arrangement exclusively between or among the Company and its existing Subsidiaries and or customary commercial Contracts (or Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not primarily related be terminated on or before the Closing Date without any future liability to Taxes)the Company or its Subsidiaries.
(g) There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Encumbrances.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 has participated in or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member party to a transaction that, as of an affiliatedthe date of this Agreement, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than constitutes a group “listed transaction” that is required to be reported to the common parent IRS pursuant to Section 6011 of which was or is the Company or any of its SubsidiariesCode and applicable Treasury Regulations thereunder.
(i) Within the past three last two (32) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken been a party to any action or agreed transaction intended to take any action, nor to the knowledge qualify under Section 355 of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCode.
Appears in 3 contracts
Sources: Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Taxes. (a) All Except as set forth on Schedule 3.15(a) attached hereto:
(i) As of the date of this Agreement, all material Tax Returns required to be filed by or with respect to the Company or any of and its Subsidiaries have been properly prepared and timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(bii) The Company and each of its Subsidiaries have fully and timely paid all Taxes, except for Taxes, if any, being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(iii) All Taxes required to have been withheld from by Company and its Subsidiaries, including, but not limited to amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, stockholder or other Person all material Taxes required by applicable Law to be withheldPerson, have been timely withheld and paid over to the proper appropriate Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesAuthority.
(civ) There are no Liens for Taxes (other than Permitted Liens) upon the property outstanding agreements or assets waivers extending any statutory period of the limitations applicable to any Tax assessment or deficiency of Company or any of its Subsidiaries.
(d) . No claim, assessment, deficiency or proposed adjustment for any material amount of Tax Person has been asserted in writing or assessed by any Governmental Authority against the granted a power of attorney on behalf of Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently currently in progress force with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, Tax matter and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) that will survive Closing. Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private received any letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither from the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts Internal Revenue Service (or Contracts entered into in the ordinary course of business) not primarily related to Taxesany comparable ruling from any other Governmental Authority).
(hv) Neither the No deficiency for any amount of Tax has been asserted or assessed by any Governmental Authority in writing against Company nor or any of its Subsidiaries (i) or, to the Knowledge of Company, has been threatened or proposed), except for deficiencies that have been satisfied by payment, settled or been withdrawn or that are being contested in good faith and are Taxes for which Company or one of its Subsidiaries, as applicable, has set aside adequate reserves in accordance with GAAP. As of the date of this Agreement, no Action is liable for pending or, to the Knowledge of Company, threatened in writing with respect to any Taxes of any other Person (other than the due from or with respect to Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no . No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it Company or any of its Subsidiaries is or may be subject to taxation in by that jurisdiction.
(jvi) There are no Tax liens upon any of the assets or properties of Company or any of its Subsidiaries, other than Permitted Liens.
(vii) There are no Tax allocation, Tax sharing, Tax indemnity or similar agreements under which Company or any of its Subsidiaries would be liable for Taxes of any other Person (other than Company, another Subsidiary of Company or any other member of the ▇▇▇▇▇▇▇ US Affiliated Group). Neither the Company nor any of its Subsidiaries has participated in any liability for the Taxes of any other Person (other than Company or another Subsidiary of Company) as a “listed transaction” transferee or successor. Neither Company nor any of its Subsidiaries have been a member of an affiliated group of corporations within the meaning of Treasury Regulation 1.6011-4(b)(2)Code Section 1504 or any comparable or similar provision of state, local or foreign Law other than the ▇▇▇▇▇▇▇ US Affiliated Group.
(kviii) The Neither Company nor any of its Subsidiaries is or has not beenbeen (A) either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code since September 1, is not, and immediately prior 2010 or (B) a party to the Share Exchange Closing will not be, treated as an a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a)(1) of the Code.
(lix) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Neither Company nor any of its Subsidiaries has taken entered into (A) a “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2) that has given rise to a disclosure obligation under Section 6011 of the Code and the Treasury Regulations promulgated thereunder and that has not been disclosed in the relevant Tax Return of Company or such Subsidiary; or (B) any action or agreed to take any actiontransaction that constitutes a “confidential corporate tax shelter” within the meaning of Section 6111 of the Code, nor and Treasury Regulations Section 301.6111-2, as in effect prior to the knowledge enactment of the American Jobs Creation Act of 2004.
(x) Neither Company or nor any of its Subsidiaries are there will be required to include any facts item of income in, or circumstancesexclude any item of deduction from, that could reasonably be expected taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:
(1) change in method of accounting for a taxable period ending on or prior to prevent the Transactions from qualifying for the Intended Tax Treatment.Closing Date;
Appears in 3 contracts
Sources: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), extension of time within which to file) and all such Tax Returns (taking into account all amendments thereto) are true, correct correct, and complete in all material respects, and all .
(b) All material Taxes of the Company and its Subsidiaries that are due and payable (whether or not shown on any Tax Return) have been timely paid.
(b) The . Neither the Company and each nor any of its Subsidiaries have withheld from amounts owing to has incurred any employeematerial liability for Taxes since January 1, creditor or 2012 other Person all material Taxes required by applicable Law to be withheld, paid over to than in the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects ordinary course of business consistent with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) past practice. There are no Liens for Taxes (other than Permitted Liens) upon material Tax liens on the property or assets of the Company or any of its SubsidiariesSubsidiaries other than for (i) Taxes not yet due and payable and (ii) Taxes that are being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(c) Each of the Company and its Subsidiaries has timely paid or withheld all material Taxes required to be paid or withheld with respect to their employees, independent contractors, creditors and other third parties (and timely paid over such Taxes to the appropriate Governmental Authority).
(d) Neither the Company nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations or agreed to any outstanding extension of the period, for the assessment or collection of any material Tax and, to the Knowledge of the Company, there has been no written request by a Governmental Authority to execute such a waiver or extension. No claimaudit or other examination or administrative, assessmentjudicial or other proceeding of, or with respect to, any material Tax Return or material Taxes of the Company or any of its Subsidiaries is currently in progress, and neither the Company nor any of its Subsidiaries has been notified in writing of any request for, or, to the Knowledge of the Company, threat of, such an audit or other examination or administrative, judicial or other proceeding. No deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any a Governmental Authority against the Company or any of its Subsidiaries that remains unresolved has not been satisfied by payment, settled or unpaidwithdrawn.
(e) There is no material Tax audit or other examination Each of the Company or any Company’s Subsidiaries formed in the PRC has, in accordance with applicable law, duly registered with the relevant PRC Governmental Authority, obtained and maintained the validity of its Subsidiaries presently all national and local tax registration certificates and complied in progress all material respects with respect all requirements imposed by such Governmental Authority. No submissions made to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority in connection with respect to Taxesobtaining Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments or Tax rebates contained any misstatement or omission that would have adversely affected the granting of such Tax exemptions, preferential treatments or rebates. Neither the Company nor any of its Subsidiaries has made a change No suspension, revocation or cancellation of any method such Tax exemptions, preferential treatments or rebates is pending or threatened. The Transactions will not have any adverse effect on the continued validity and effectiveness of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into will not result in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes claw-back or recapture of any such Tax exemptions, Tax holidays, Tax deferrals, Tax incentives or other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign preferential Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariestreatments.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Merger Agreement (Cnshangquan E-Commerce Co., Ltd.), Merger Agreement (ChinaEquity USD Fund I L.P.), Merger Agreement (Mecox Lane LTD)
Taxes. (a) All material Company and each of its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material Taxes due and payable ; (whether or not shown on any Tax Returnii) have been paid.
paid in full all Taxes that are required to be paid or made adequate provision in the financial statements of Company; (biii) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, independent contractor, creditor or other Person third party all material Taxes required by applicable Law amounts that Company or any of its Subsidiaries is obligated to be withheld, have withheld and have timely paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to the relevant Tax authority; and (iv) have been so paid over disclosed and complied reserved for any uncertain Tax positions.
(b) To Company’s Knowledge, none of the Tax Returns of Company or any of its Subsidiaries are currently under any audit, suit, proceeding, examination or assessment by the IRS or the relevant state, local or foreign Tax authority and neither Company nor any of its Subsidiaries has received written notice from any Tax authority that an audit, suit, proceeding, examination or assessment in all material respects with all applicable withholding and related reporting requirements with respect of such Tax Returns or matters pertaining to such TaxesTaxes are pending or threatened.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment deficiencies for any material amount of Tax has Taxes have been asserted in writing or assessed by any Governmental Authority assessments made against the Company or any of its Subsidiaries that remains unresolved have not been paid or unpaid.
resolved in full. No claim has been made in writing during the past five (e5) There is no material Tax audit or other examination of the years against Company or any of its Subsidiaries presently by any Tax authorities in progress with respect to any material Taxes, nor has the a jurisdiction where Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the does not file Tax Returns that Company or any of its SubsidiariesSubsidiaries is or may be subject to taxation by that jurisdiction.
(fd) Neither the Company nor any of its Subsidiaries has made a request for granted any waiver, extension or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority comparable consent regarding the application of the statute of limitations with respect to Taxes. Taxes or Tax Return that has not expired, nor has any request for any such waiver or consent been made with respect to any statute of limitations that has not since expired.
(e) Neither Company nor any of its Subsidiaries is, and during the past five (5) years has never been, a “United States real property holding corporation” within the meaning of Section 897 of the Code.
(f) No Liens for Taxes exist with respect to any of the assets of Company or any of its Subsidiaries, except for Liens for Taxes not yet due and payable.
(g) Neither Company nor any of its Subsidiaries has made a change of entered into any method of accounting closing agreements, private letter rulings, technical advice memoranda or similar agreement or rulings with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or authority, nor have any been issued by any Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)authority.
(h) Neither the Company nor any of its Subsidiaries (i) is liable or has ever been a member of an affiliated, combined, consolidated or unitary Tax group for purposes of filing any Tax Return, other than an affiliated, combined, consolidated or unitary Tax group of which Company is or was the common parent, (ii) has any liability for Taxes of any other Person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or Law), as a transferee or successor or successor, by Contract or otherwise, (iii) is a party to or bound by any Tax sharing or allocation agreement or has any other current or potential contractual obligation to indemnify any Person (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries) with respect to Taxes, (iv) has, or has ever had, a permanent establishment in any country other than the country of its organization, or (v) has granted to any Person any power of attorney that is currently in force with respect to any Tax matter.
(i) Within None of Company, any of its Subsidiaries, or any Person acting on their behalf has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustments pursuant to Section 481(a) of the past three Code (3or any similar provisions of state, local or foreign Law) yearsafter the Closing Date, no written claim has been made by any Governmental Authority where the nor will Company or any of its Subsidiaries does not file Tax Returns that it is (or may their successor by merger) be subject required to taxation in that jurisdictiontake into account income after the Effective Time any items economically realized prior to the Effective Time.
(j) Company and each of its Subsidiaries have complied in all material respects with all requirements to report information for Tax purposes to any individual or Tax authority, and have collected and maintained all material certifications and documentation in valid and complete form with respect to any such reporting obligation, including, without limitation, valid IRS Forms W-8 and W-9.
(k) Neither the Company nor any of its Subsidiaries has participated in a any “listed transactionreportable transactions” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(kl) The Company has not beenmade available to Parent true, is notcorrect and complete copies of the United States federal income Tax Returns filed by Company and its Subsidiaries for each of the five fiscal years ended December 31, 2020, 2021, 2022, 2023 and 2024, and immediately prior will make available, if filed before the Closing Date, such Tax Returns to be filed for the Share Exchange Closing will not befiscal year ended December 31, treated as an 2025.
(m) None of Company or its Subsidiaries has been a “investment companydistributing corporation” or “controlled corporation” (i) in any distribution occurring during the last 30 months that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Law) or (ii) in any distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 368(a)(2)(F355(e) of the Code) of which the Merger is a part.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization and Merger (Heritage Commerce Corp), Agreement and Plan of Reorganization and Merger (Heritage Commerce Corp), Merger Agreement (CVB Financial Corp)
Taxes. Except as set forth in Section 3.10 of the Seller Disclosure Letter,
(a) All material all Tax Returns required to be filed by or with respect to the Company or any of its and the Subsidiaries have been timely filed (taking into account any applicable extensions)filed, all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, respects and all Taxes shown on such Tax Returns and all other material Taxes due and payable (whether required to be paid by, or not shown that could give rise to a Lien on the assets of, the Company or any Tax Return) of the Subsidiaries have been timely paid.;
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, withheld by the Company and the Subsidiaries have been timely withheld and all withheld Taxes have been timely paid over to the proper Governmental Authority Taxing authorities or properly set aside in a timely manner all accounts for such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements purpose;
(1) there are no waivers or extensions of statutes of limitations or periods of assessment or collection of any Taxes with respect to such Taxes.
(c) There are no Liens for the material Taxes (other than Permitted Liens) upon or the property or assets material Tax Returns of the Company or any of its the Subsidiaries.
(d) No claim, assessmentand no written power of attorney with respect to any such Taxes, deficiency or proposed adjustment for any material amount of Tax has been filed or entered into with any Taxing Authority; (2) the time for filing any Tax Return with respect to the Company or any of the Subsidiaries has not been extended to a due date later than the date of this Agreement; (3) no material Taxes or material Tax Returns with respect to the Company or any of the Subsidiaries are currently the subject of any judicial or administrative proceeding, audit, examination or investigation, and no such proceeding, audit, examination or investigation has been threatened in writing; (4) no Taxing Authority has asserted in writing any deficiency, claim or assessed by issue with respect to Taxes or any Governmental Authority adjustment to Taxes against the Company or any of its the Subsidiaries that with respect to any Taxable period for which the period of assessment or collection remains unresolved open; and (5) no jurisdiction (whether within or unpaid.
(ewithout the United States) There is no material Tax audit or other examination of in which the Company or any of its the Subsidiaries presently in progress with respect to any material Taxes, nor has not 49 filed a particular type of Tax Return has asserted that the Company or any of such Subsidiary is required to file such Tax Return in its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.jurisdiction;
(fd) Neither neither the Company nor any of its the Subsidiaries (i) has made received or applied for a request for Tax ruling or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect pursuant to Taxes. Neither Section 7121 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts Code (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 predecessor provision or any similar provision of state, local or foreign Tax Law Law), in either case that would be binding upon the Company or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in any of the ordinary course of business) not primarily related to Taxes) or Subsidiaries after the Closing Date, (ii) is or has ever been a member of an any affiliated, consolidated, combined or unitary group for purposes of filing for U.S. federal, state Tax Returns or local income Tax purposes, paying Taxes (other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Company).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.,
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Acquisition Agreement
Taxes. (a) All material The Company has filed all Tax Returns that it is required to be have filed by or with respect prior to the Company or date hereof, including any extension of its Subsidiaries have been timely filed (taking into account any applicable extensions)time for the filing thereof, all and such Tax Returns (taking into account all amendments thereto) returns are true, true and correct and complete in all material respects, respects and all material have been prepared in a manner consistent with prior periods. All Taxes due and payable owed as of the Most Recent Balance Sheet Date by the Company (whether or not shown on any Tax Return) have been paidpaid or are accrued for on the Most Recent Balance Sheet in accordance with GAAP consistent with past practice. All Taxes owed by the Company will be paid through the Closing Date.
(b) The There are no security interests on any of the assets of the Company and each of its Subsidiaries have withheld from amounts owing that arose in connection with any failure (or alleged failure) to pay any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTax.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimagreements, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit waivers or other examination arrangements providing for extension of the Company or any of its Subsidiaries presently in progress filing with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there Tax Return. There are no waivers, extensions or written requests for any unexpired waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(gd) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) No claim has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority an authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(je) Neither the The Company nor has timely withheld and paid all Taxes required to have been withheld and paid in connection with any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)amounts paid or owing to any employee, independent contractor, stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.
(kf) The Company is not a party to any action or proceedings by any Governmental Authority for the collection or assessment of Taxes.
(g) There is no dispute or claim concerning any Tax liability of the Company either (i) claimed or raised by any authority in writing or (ii) as to which any of the stockholders and the directors and officers (and employees responsible for Tax matters) thereof has knowledge based upon personal contact with any agent of such authority.
(h) The Company is not a party to any Tax allocation or sharing agreement. The Company has no liability for the Taxes of any Person under Reg. §1.1502 6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(i) The Company has not been, is not, and immediately prior made any change in any method of accounting which could give rise to the Share Exchange Closing will recognition of income or to Tax liability following the date hereof. The Company has not be, treated as made any closing adjustment in connection with an “investment company” within audit which could give rise to the meaning recognition of Section 368(a)(2)(F) of income or to Tax liability following the Codedate hereof.
(lj) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge The unpaid Taxes of the Company or did not, as of the Most Recent Balance Sheet, exceed the reserve for Tax liability (rather than any of its Subsidiaries are there any facts or circumstancesreserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Most Recent Balance Sheet, and do not exceed that could reasonably be expected to prevent the Transactions from qualifying reserve as adjusted for the Intended passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing their Tax TreatmentReturns.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Kensey Nash Corp), Asset Purchase Agreement (Kensey Nash Corp)
Taxes. (a) All (i) Each of the Company and each Company Subsidiary has timely filed, taking into account any extensions, all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all and such Tax Returns (taking into account all amendments thereto) are true, correct accurate and complete in all material respects, ; (ii) each of the Company and each Company Subsidiary has paid all material Taxes required to have been paid by it other than Taxes that are not yet due or that are being contested in good faith in appropriate proceedings; and payable (whether or not shown on iii) no material deficiency for any Tax Return) have has been paidasserted or assessed by a taxing authority against the Company or any Company Subsidiary which deficiency has not been paid or is not being contested in good faith in appropriate proceedings.
(b) The No material Tax Return of the Company or any Company Subsidiary is under audit or examination by any taxing authority, and no written notice of such an audit or examination has been received by the Company or any Company Subsidiary that remains outstanding. No deficiencies for any material Taxes have been proposed, asserted or assessed against the Company or any Company Subsidiary that were not finally resolved in full prior to the date of, with all consequences thereof properly reflected in accordance with GAAP in, the most recent Company SEC Documents, and no requests for waivers of the time to assess any such Taxes are pending. No other procedure, proceeding or contest of any refund or deficiency in respect of material Taxes is pending in or on appeal from any Governmental Entity.
(c) Each of the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and Company Subsidiary has complied in all material respects with all applicable Laws relating to the collection, payment and withholding and related reporting requirements with respect to such remittances of Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency Neither the Company nor any Company Subsidiary is a party to or proposed adjustment for is otherwise bound by any material amount of Tax has been asserted in writing sharing, allocation or assessed by any Governmental Authority against indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries or any customary Tax payment or indemnification provisions in Contracts the primary purpose of its Subsidiaries that remains unresolved or unpaidwhich does not relate to Taxes).
(e) There is no material Tax audit Within the past three years, neither the Company nor any Company Subsidiary has been a “distributing corporation” or other examination a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesCode.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries Subsidiary has participated in a “listed transaction” or a “transaction of interest” within the meaning of Treasury Regulation Section 1.6011-4(b)(24(b).
(kg) The Company Since January 1, 2014, no claim has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated been made by this Agreement and the Transactions contemplated hereby, neither a taxing authority in a jurisdiction where the Company nor or any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of Company Subsidiary does not file Tax Returns that the Company or any of its the Company Subsidiaries are there any facts is or circumstances, that could reasonably may be expected subject to prevent the Transactions from qualifying for the Intended Tax TreatmentTaxes assessed by such jurisdiction.
Appears in 3 contracts
Sources: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Hawaiian Telcom Holdco, Inc.), Merger Agreement (Cincinnati Bell Inc)
Taxes. (a) All material Tax Returns required by applicable Law to be filed with any Taxing Authority by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are true, correct were accurate and complete when filed in all material respects, and all material Taxes due payable by the Company and payable each of its Subsidiaries (whether or not shown on any the Company’s Tax ReturnReturns) have been paid.
(b) paid to the relevant Taxing Authority. The Company and each of its Subsidiaries have withheld from amounts owing to has not incurred any employee, creditor or other Person all material liability for Taxes required by applicable Law to be withheld, paid over to owed since the proper Governmental Authority date of the Company’s most recent financial statements included in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthe Company SEC Documents outside of the ordinary course of business.
(cb) There are is (i) no Liens Action now pending or threatened in writing against the Company or its Subsidiaries in respect of any Tax, (ii) no deficiency for any Tax that has been asserted or assessed in writing by any Taxing Authority against the Company or any of its Subsidiaries as a result of any audit or examination by such Taxing Authority, other than any such deficiency that has been paid, settled or withdrawn or is being contested in good faith and in accordance with applicable legal requirements, (iii) no Lien for Taxes (other than Permitted Liens) upon any of the property assets or assets properties of the Company or any of its Subsidiaries.
; and (div) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax no unresolved written claim that has been asserted in writing or assessed received by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the from any Taxing Authority in any jurisdiction in which such Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the do not file Tax Returns asserting that such Company or any of its Subsidiaries been notified is or may be subject to Taxes in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesthat jurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(hc) Neither the Company nor any of its Subsidiaries (i) is liable party to or bound by any Tax allocation, Tax sharing or Tax indemnification agreement that would have a continuing effect after the Closing Date, other than (A) any such agreement exclusively between or among the Company and its Subsidiaries, or (B) Tax provisions in agreements the primary matter of which is not Taxes; (ii) has been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is or was Parent or the Company); (iii) has any liability for the Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Tax Law Law), or as a transferee or successor or otherwise by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course operation of business) not primarily related to Taxes) Law; or (iiiv) has ever been requested or 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 member of an affiliatedTax assessment or deficiency, consolidated, combined which period (after giving effect to such extension or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiarieswaiver) has not yet expired.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jd) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24 (or any similar provision of the Tax laws of any jurisdiction).
(ke) The Company has not been, is not, and immediately prior to During the Share Exchange Closing will not be, treated as an “investment company” within two-year period ending on the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebydate hereof, neither the Company nor any of its Subsidiaries has taken any action been a “distributing corporation” or agreed a “controlled corporation” in a distribution of stock intended to take any action, nor to the knowledge qualify for tax-free treatment under Section 355 of the Code.
(f) Neither the Company or nor any of its Subsidiaries are there has made an election under Section 965(h) of the Code (or any facts corresponding or circumstancessimilar provision of state, that could reasonably be expected to prevent the Transactions from qualifying for the Intended local or foreign Tax Treatmentlaw).
Appears in 3 contracts
Sources: Merger Agreement (VOXX International Corp), Merger Agreement (Gentex Corp), Merger Agreement (Gentex Corp)
Taxes. (a) (i) All material Tax Returns required to be filed by or with respect to the Company or any of Parent, its Subsidiaries and each Parent Consolidated Group have been timely filed (taking into account any in accordance with all applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, (ii) Parent, its Subsidiaries and each Parent Consolidated Group have timely paid all material Taxes due or claimed to be due and payable (will have paid all material Taxes of Parent, its Subsidiaries and each Parent Consolidated Group that are due on or before the Closing Date, including any installments or estimated payments due, whether or not shown on any Tax ReturnReturns, (iii) all material Employment and Withholding Taxes and any other material amounts required to be withheld with respect to Taxes have been paideither duly and timely paid to the proper Governmental Entities or properly set aside in accounts for such purpose in accordance with applicable Laws, (iv) the charges, accruals and reserves for Taxes with respect to Parent, its Subsidiaries and each Parent Consolidated Group reflected in the balance sheet, dated as of December 31, 2005, included in Parent’s Annual Report on Form 10-K for the year ended December 31, 2005 (the “Parent Balance Sheet”) are adequate under GAAP, (v) no material deficiencies or other claims for any Taxes asserted or assessed, or, to the Knowledge of Parent, proposed, against Parent or any of its Subsidiaries has not been resolved in all material respects, (vi) there is no material Litigation pending or, to the Knowledge of any of Parent or its Subsidiaries, threatened or scheduled to commence, against or with respect to Parent or any of its Subsidiaries in respect of any Tax or Return, and (vii) since December 31, 1999, neither Parent nor any of its Subsidiaries has received (A) notice from any federal taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns or (B) notice from any state taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns, other than notices with respect to examinations or audits by any state taxing authority that have not had and would not reasonably be expected to have a Material Adverse Effect on Parent.
(b) The Company statutes of limitations for the federal income Tax Returns of Parent, its Subsidiaries and each of its Subsidiaries Parent Consolidated Group have withheld from amounts owing to any employee, creditor expired or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to otherwise have been so paid over and complied in closed for all material respects with all applicable withholding and related reporting requirements with respect to such Taxestaxable periods ending on or before December 31, 1999.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimSince January 1, assessment2000, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company neither Parent nor any of its Subsidiaries has made been a request member of any “affiliated group” (as defined in Section 1504(a) of the Code) or has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only Parent and any Subsidiaries of Parent) provided for under the Laws of the United States, any foreign jurisdiction or entered into a closing agreement, private letter ruling, advance tax ruling any state or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company locality and none of Parent nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither liability for the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision under any state, local or foreign law), or as a successor or transferee.
(d) There are no Tax sharing, allocation, indemnification or similar agreements or arrangements, whether written or unwritten, in effect under which Parent or any of its Subsidiaries could be liable for any material Taxes of any Person other than Parent or any Subsidiary of Parent.
(e) Neither Parent nor any of its Subsidiaries has entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes, nor is any request for such a waiver or extension pending.
(f) There are no Liens for Taxes on any asset of Parent or its Subsidiaries, except for Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries is the subject of or bound by any material private letter ruling, technical advice memorandum, closing agreement or similar material ruling, memorandum or agreement with any taxing authority.
(h) Neither Parent nor its Subsidiaries has entered into, has any liability in respect of, or has any filing obligations with respect to, any “reportable transactions,” as defined in Section 1.6011-4(b)(1) of the Treasury Regulations.
(i) Neither Parent nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or Law), (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date, or (iii) deferred intercompany gain or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law).
(j) Neither Parent nor any of its Subsidiaries has ever been taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that would be reasonably likely to prevent the Merger from qualifying as a member reorganization within the meaning of an affiliated, consolidated, combined or unitary group filing for Section 368(a) of the Code.
(k) Parent has made available to the Company correct and complete copies of (i) all U.S. federal, state or local federal income Tax purposesReturns of Parent and its Subsidiaries relating to taxable periods ending on or after December 31, other than a group 1999, filed through the common parent of which was date hereof and (ii) any material audit report within the last four years relating to any material Taxes due from or is the Company with respect to Parent or any of its Subsidiaries.
(il) Within the past three (3) years, no written claim has been made by any Governmental Authority No jurisdiction where the Company Parent or any of its Subsidiaries does not file Tax Returns a Return has made a claim that it Parent or any of its Subsidiaries is or may be subject required to taxation in that file a Return for a material amount of Taxes for such jurisdiction.
(jm) Neither Within the Company last three years, neither the Parent nor any of its Subsidiaries has participated in owned any material assets located outside the United States or conducted a “listed transaction” within material trade or business outside the meaning of Treasury Regulation 1.6011-4(b)(2)United States.
(kn) The Company All of the transactions which Parent has not been, is not, and immediately prior to the Share Exchange Closing will not be, accounted for as ▇▇▇▇▇▇ under SFAS 133 have also been treated as an “investment company” within the meaning of hedging transactions for federal income Tax purposes pursuant to Treasury Regulation Section 368(a)(2)(F) of the Code1.1221-2 and have been properly identified as such under Treasury Regulation Section 1.1221-2(f).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp), Merger Agreement (Petrohawk Energy Corp)
Taxes. (a) All material (i) The Company and each Company Subsidiary has (x) duly and timely filed or has caused to be filed with the appropriate Governmental Entities or Taxing Authorities all Tax Returns required to be filed by or with them in respect to the Company or of any of its Subsidiaries have been timely filed (taking into account any applicable extensions)material Taxes, all such which Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respects, or requests for extensions to file such Tax Returns have been timely filed, granted and have not expired and (y) duly and timely paid in full or withheld (or the Company has paid or withheld on the Company Subsidiaries’ behalf) all material Taxes that are due and payable by them, other than Taxes that are being contested in good faith in appropriate proceedings or for which adequate reserves are reflected, in accordance with GAAP, in the Company Financial Statements; (whether ii) none of the Company or not shown on any Tax Return) have been paid.
(b) The Company and each Subsidiary has any extension or waiver of its Subsidiaries have withheld from amounts owing the limitation period applicable to any employee, creditor the payment or other Person all collection of material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority currently in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
effect; (ciii) There there are no Liens for material Taxes (other than Permitted Liens) upon the any property or assets of the Company or any Company Subsidiary, except for Permitted Liens; (iv) there are no requests for rulings or determinations in respect of its Subsidiaries.
any material Taxes or material Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such Taxes or Tax Returns; (dv) No claim, assessment, no deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Entity or Taxing Authority in writing against the Company or any of its Subsidiaries that remains unresolved Company Subsidiary, except for deficiencies which have been satisfied by payment, settled or unpaid.
been withdrawn, or which are being contested in good faith by appropriate proceedings or for which adequate reserves are reflected, in accordance with GAAP, in the Company Financial Statements; (evi) There neither the Company nor any Company Subsidiary is no party to any material Tax audit tax sharing agreements, tax indemnity agreements or other examination similar agreements (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries); (vii) none of the Company or any Company Subsidiary has any liability for material Taxes as a result of its Subsidiaries presently in progress with respect to having been a member of any material Taxesaffiliated group within the meaning of Section 1504(a) of the Code, nor has or any similar affiliated or consolidated group for tax purposes under state, local or foreign Law (other than a group the common parent of which is the Company or any of its Subsidiaries been notified in writing of Company Subsidiary), or has any request or threat liability for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any the material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its or the Company Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law), or as a transferee or successor successor, by contract or by Contract otherwise; (other than customary commercial Contracts (or Contracts entered into in the ordinary course viii) none of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any Company Subsidiary will be required to include in income after the Closing any material adjustment pursuant to Section 481 of its Subsidiaries.
the Code (ior any similar provision of state, local or foreign Law) Within the past three (3) years, no written claim has been made by any Governmental Authority where reason of a change in accounting method by the Company or any Company Subsidiary prior to Closing; and (ix) (w) TNCLP is a publicly traded partnership, the interests of its Subsidiaries does which are either traded on an established securities market or readily tradable on a secondary market (or the substantial equivalent thereof), (x) TNCLP is treated as a partnership for U.S. federal income tax purposes, (y) TNCLP has satisfied the passive income test of Section 7704(c) of the Code for each taxable year after 1987 in which it was a publicly traded partnership and (z) TNCLP has not file Tax Returns that it is registered as a management company or may be subject to taxation in that jurisdictionunit investment trust under the Investment Company Act of 1940, as amended.
(jb) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).
(kc) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any Company Subsidiary has been a “controlled corporation” or a “distributing corporation” in any distribution of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge stock qualifying for tax-free treatment under Section 355 of the Code occurring during the two-year period ending on the date hereof.
(d) The representations and warranties in this Section 3.13 and Section 3.15 are the exclusive representations and warranties by the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected and each Company Subsidiary relating to prevent the Transactions from qualifying for the Intended Tax Treatmentmatters.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Taxes. (a) All Target and each of its Subsidiaries has duly and timely filed (or there has been filed on its behalf) with, or duly requested an extension of time for such filing from, the appropriate Governmental Authorities all material Tax Returns (including all relevant elections associated with those Tax Returns) required to be filed by it or with respect to the Company its income, properties or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)operations, and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material Taxes due of Target and payable (each of its Subsidiaries whether or not shown to be due on any such Tax Return) Returns have been paidtimely paid in full.
(b) The Company Target and each of its Subsidiaries has, in accordance with all applicable Laws, withheld and timely paid to the appropriate Governmental Authority all material Taxes required to have been withheld from and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, shareholder or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesPerson.
(c) There are no Liens (except for Taxes (other than Permitted Liens) for Taxes upon the property or assets any of the Company assets or properties of Target or any of its Subsidiaries.
(d) No claimExcept as set forth in Section 3.19(d) of the Target Disclosure Letter, assessmentneither Target nor any of its Subsidiaries has requested any extension of time within which to file any Tax Return in respect of any taxable year which has not since been filed, deficiency and no outstanding waivers or proposed adjustment for comparable consents regarding the application of the statute of limitations with respect to any material amount Taxes or Tax Returns have been given by or on behalf of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Target or any of its Subsidiaries that remains unresolved or unpaidare still in effect other than those that arise by filing a Tax Return by the extended due date.
(e) There Except as set forth on Section 3.19(e) of the Target Disclosure Letter, there is no material Tax audit audit, action, suit, proceeding or other examination investigation now pending, or to the Knowledge of the Company or any of its Subsidiaries presently in progress Target, threatened with respect regard to any material Taxes, nor has the Company Tax or any Tax Returns of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company Target or any of its Subsidiaries.
(f) Neither the Company ; and neither Target nor any of its Subsidiaries has made a request for or entered into a closing agreementreceived written notice to the effect that, private letter rulingand Target has no Knowledge that, advance tax ruling or similar agreement with any Governmental Authority with respect intends to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesconduct such an audit or investigation.
(gf) Neither the Company nor any of its Subsidiaries is a party to any All Tax indemnification deficiencies, if any, which have been claimed, proposed or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company asserted against Target or any of its Subsidiaries does not file Tax Returns that it is by any Governmental Authority have been fully paid or may be subject to taxation are being contested in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not beengood faith by appropriate proceedings, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.adequately reserved for
Appears in 3 contracts
Sources: Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.)
Taxes. (ai) All Pan American and each of its subsidiaries has timely filed all material Tax Returns required to be filed by or with respect them prior to the Company date of this Agreement, and all such Returns are complete and correct in all material respects.
(ii) No material penalty has been imposed on Pan American or any of its Subsidiaries have been subsidiaries for failing to duly and timely filed comply with all permanent and transactional informational regimes and other formal duties required by Law.
(taking into account any applicable extensions)iii) Pan American and each of its subsidiaries has paid on a timely basis all Taxes which are due and payable, all such Tax Returns (taking into account all amendments thereto) are true, correct assessments and complete in all material respectsreassessments of Taxes, and all material other Taxes due and payable (whether by them on or before the date of this Agreement, other than those which are not shown on any Tax Return) material or which are being or have been paidcontested in good faith and in respect of which reserves have been provided in the Pan American Financial Statements.
(biv) The Company and each None of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Pan American or any of its Subsidiariessubsidiaries has been notified or has knowledge of any pending audits, examinations, investigations or other proceedings in respect of any material Taxes at any level of government (including federal, provincial, state, regional, municipal or local level).
(dv) No claimdeficiencies, assessmentadministrative or judicial litigation, deficiency proposed adjustments or proposed adjustment for any material amount of Tax has matters in controversy exist or have been asserted in writing or assessed by any Governmental Authority against the Company with respect to Taxes of Pan American or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationsubsidiaries which are material, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company neither Pan American nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries subsidiaries is a party to any Tax indemnification action or Tax sharing proceeding for assessment or similar Tax agreement (other than any collection of Taxes which are material and no such agreement solely between event has been asserted or, to the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course knowledge of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of statePan American, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company threatened against Pan American or any of its Subsidiariessubsidiaries or any of their respective assets.
(ivi) Within To the past three (3) yearsknowledge of Pan American, no written claim has been made by any Governmental Authority Entity in a jurisdiction where the Company Pan American and any of its subsidiaries does not file Returns that Pan American or any of its Subsidiaries does not file Tax Returns that it subsidiaries is or may be subject to taxation Tax by that jurisdiction in that jurisdictionany material respect.
(jvii) To the knowledge of Pan American, no tax enforcement proceedings are currently initiated against Pan American or any of its subsidiaries for failing to timely pay Taxes reported in any Returns.
(viii) To the knowledge of Pan American, there are no material Liens in respect of Taxes (other than in respect of Taxes not yet due and payable) upon any of the assets of Pan American or any of its subsidiaries.
(ix) Pan American and each of its subsidiaries has withheld or collected all material amounts required to be withheld or collected by it on account of Taxes of their own or in respect of payments to third parties and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so.
(x) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes due from Pan American or any of its subsidiaries for any taxable period and no request for any such waiver or extension is currently pending.
(xi) The tax attributes of the assets of Pan American and each of its subsidiaries and the amount of the tax loss carry-forwards of Pan American and each of its subsidiaries are accurately reflected in all material respects in the Returns of Pan American and each of its subsidiaries, as applicable, and have not materially and adversely changed since the date of such Returns.
(xii) Except to the extent permissible by Law, none of Pan American and any of its subsidiaries has been involved in any corporate, commercial or other arrangement or structure for the purpose of avoiding the payment of any material amount Taxes, and has not taken advantage of any amnesty regarding Taxes.
(xiii) No material payments are due or will become due by Pan American or any of its subsidiaries pursuant to any Tax indemnification agreements made in connection with a sale of shares, sale transfer or swap of assets or any kind of past or future commercial or corporate transaction.
(xiv) Pan American and each of its subsidiaries has duly and timely collected all material amounts on account of any sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted in all material respects to the appropriate Governmental Entity any such amounts required by Law to be remitted by it.
(xv) Pan American and each of its subsidiaries carrying on business in Canada is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax and any provincial sales tax equivalent.
(xvi) Neither the Company Pan American nor any of its Subsidiaries has participated subsidiaries have ever in any material respects, directly or indirectly, transferred any property to, or supplied any services to, or acquired any property or services from a “listed transaction” non-resident of Canada (within the meaning of Treasury Regulation 1.6011-4(b)(2).
the Tax Act) with whom they were not dealing at arm’s length (k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(Fthe Tax Act) for consideration other than consideration equal to the fair market value of the Codeproperty or services at the time of transfer, supply or acquisition of the property or services.
(lxvii) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor There are no circumstances in which Pan American or any of its Subsidiaries has taken any action or agreed to take any actionsubsidiaries could be liable under section 160 of the Tax Act for the Taxes of another person.
(xviii) There are no circumstances existing, nor to the knowledge of Pan American, which would result in the Company application of section 78 or sections 80 to 80.04 of the Tax Act, or any equivalent provision under provincial Law, to Pan American or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentsubsidiaries.
Appears in 3 contracts
Sources: Arrangement Agreement (Pan American Silver Corp), Arrangement Agreement (Tahoe Resources Inc.), Arrangement Agreement
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries Seller have been timely filed (taking into account any applicable extensions), all such filed. Such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material . All Taxes due and payable owing by the Seller (whether or not shown on any Tax Return) have been timely paid.
(b) The Company Seller has withheld and paid each of its Subsidiaries Tax required to have been withheld from and paid in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, customer, shareholder or other Person all material Taxes required by applicable Law to be withheldparty, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all information reporting and backup withholding provisions of applicable withholding and related reporting requirements with respect to such TaxesLaw.
(c) There are no Liens for The Seller has collected all sales, use, value added, goods and services, and similar Taxes (other than Permitted Liens) upon required to be collected and timely remitted all such Taxes collected to the property or assets of the Company or any of its Subsidiariesappropriate Governmental Authority in accordance with applicable Law.
(d) No claim, assessment, deficiency extensions or proposed adjustment for waivers of statutes of limitations have been given or requested with respect to any material amount Taxes of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidSeller.
(e) There is no material Tax audit All deficiencies asserted, or other examination of assessments made, against the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing Seller as a result of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for examinations by any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesGovernmental Authority have been fully paid.
(f) Neither The Seller is not a party to any Action by any Governmental Authority. There are no pending or threatened Actions by any Governmental Authority. No Governmental Authority in a jurisdiction where the Company nor any of its Subsidiaries Seller does not file Tax Returns has made a request for any claim that the Seller is or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect may be subject to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesTax in that jurisdiction.
(g) Neither the Company nor There are no Encumbrances for Taxes upon any of its Subsidiaries the Purchased Assets nor is a party to any Tax indemnification or Tax sharing or similar Tax agreement Governmental Authority in the process of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than any such agreement solely between the Company for current Taxes not yet due and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxespayable).
(h) Neither the Company nor any of its Subsidiaries (i) is liable The Seller has no Liability for Taxes of any other Person (other than the Company and its Subsidiaries) arising under Treasury Regulation Section 1.1502-6 or any similar provision Contract, by operation of statelaw, local or foreign Tax Law or as by reason of being a transferee or successor or by transferee, or otherwise. None of the Assumed Liabilities is a Contract (other than customary commercial Contracts (regarding the sharing or Contracts entered into in the ordinary course allocation of business) not primarily related to either Liability for Taxes or payment of Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within None of the past three (3) years, no written claim has been made Purchased Assets to be acquired by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither Buyer from the Company nor any of its Subsidiaries has participated in a Seller constitute “listed transactiontaxable Canadian property” within the meaning of Treasury Regulation 1.6011-4(b)(2)the ITA.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 3 contracts
Sources: Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.), Asset Purchase Agreement (LQR House Inc.)
Taxes. (a) All Each of the Transferred FH Companies and their Closing Subsidiaries and, to the extent related to the FH Business, each FH Asset Seller has (i) timely filed (or had timely filed on its behalf) with the appropriate Tax Authorities all income and other material Tax Returns required to be filed by or with respect to the Company or any on behalf of its Subsidiaries have been timely filed (taking into account any applicable extensions)it, all and each such Tax Returns (taking into account all amendments thereto) are true, correct Return was complete and complete accurate in all material respects, and (ii) timely paid (or had paid on its behalf) all material Taxes due and payable (owing, regardless of whether required to be shown or not shown reported on any a Tax Return) have been paid.;
(b) The Company and each There is no examination, audit or other action of its Subsidiaries have withheld from amounts owing or relating to any employee, creditor Tax Return pending against or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to any of the Transferred FH Companies or their Closing Subsidiaries in respect of any material Tax and no written notice of such Taxes.an examination, audit or other action with respect to any material Tax has been received by Seller, any Affiliate of Seller, any Transferred FH Company or its Closing Subsidiaries, in each case that relates primarily to the FH Business;
(c) There are no Liens No deficiency for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any a material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved the Transferred FH Companies or unpaid.their Closing Subsidiaries;
(d) There are no material liens for Taxes upon the FH Shares, the Acquired FH Assets, the FH Assets or the Assets or property of any of the Transferred FH Companies or their Closing Subsidiaries, except for Permitted Encumbrances;
(e) There is no material Tax audit agreement or other examination document extending, or having the effect of extending, the period of assessment or collection of any material Taxes by or on behalf of any Transferred FH Company or its Closing Subsidiaries other than as a result of any such Transferred FH Company or Closing Subsidiary being a member of any Affiliated Group that includes Seller or any of its Subsidiaries presently in progress with respect to any material Taxes, that are neither Transferred FH Companies nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Closing Subsidiaries.;
(f) Neither None of the Company nor Transferred FH Companies or any of its their Closing Subsidiaries has made distributed to its shareholders or security holders stock or securities of a request for controlled corporation, nor has stock or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change securities of any method Transferred FH Company or Closing Subsidiary been distributed, in each case in a transaction to which Section 355 of accounting with respect the Code applies in the three years prior to any Taxes.the date of this Agreement;
(g) Neither Other than those entities listed on Schedule 3.10(g) of the Company nor Seller’s Disclosure Letter, none of the Transferred FH Companies or any of its their Closing Subsidiaries has made an entity classification (“check-the-box”) election under Section 7701 of the Code;
(h) None of the Transferred FH Companies or any of their Closing Subsidiaries has engaged in a “listed transaction” as set forth in Treasury Regulation Section 301.6111-2(b)(2) or any analogous provision of state or local Law;
(i) None of the Transferred FH Companies or any of their Closing Subsidiaries is a party to a gain recognition agreement under Section 367 of the Code that will not be triggered in connection with the transactions contemplated by this Agreement;
(j) For the taxable year immediately preceding the current taxable year, Seller has filed a consolidated federal income Tax Return with Colfax Fluid Handling Reliability Services Company; and
(k) None of the Transferred FH Companies or their Closing Subsidiaries will be required to include any Tax indemnification material item of income in, or Tax sharing or similar Tax agreement (other than exclude any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts material item of deduction from, taxable income for any taxable period (or Contracts entered into in portion thereof) ending after the ordinary course Closing Date as a result of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes any adjustments under Section 481 of any other Person the Code (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax Law) made prior to the Closing Date, (ii) any deferred intercompany gain or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into Law) in the ordinary course respect of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately transaction occurring prior to the Share Exchange Closing will not beDate, treated as an “investment company” within (iii) any installment sale or open transaction disposition made on or prior to the meaning of Closing Date, (iv) any prepaid amount received on or prior to the Closing Date, or (v) any election made pursuant to Section 368(a)(2)(F108(i) of the Code.Code on or prior to the Closing Date;
(l) Except insofar as contemplated by Section 3.6 and Section 3.11 relate to Taxes, notwithstanding anything in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of contrary, the Company representations and warranties made by Seller in this Section 3.10 are the sole and exclusive representations and warranties made regarding Taxes or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended other Tax Treatmentmatters.
Appears in 2 contracts
Sources: Purchase Agreement (Circor International Inc), Purchase Agreement (Colfax CORP)
Taxes. (a) All material Seller has timely filed, or caused to be timely filed, all income and other Tax Returns that it was required to be filed by or file (taking into account applicable extensions) with respect to the Company or any of its Subsidiaries have been timely filed Acquired Assets and the Business.
(taking into account any applicable extensions), all b) All such Tax Returns (taking into account all amendments thereto) were and are true, complete and correct and complete in all material respects, and, where required, properly identify Seller as the seller of RINS credits and blender of gasoline, diesel fuel or kerosene, including, without limitation, with proper excise Tax registration.
(c) Seller has timely paid all material Taxes due and payable (whether or not shown as due and payable on any a Tax Return) have been paidwith respect to the Acquired Assets and the Business.
(bd) The Company All Taxes with respect to the Acquired Assets and each of its Subsidiaries have withheld from amounts owing to any employee, creditor the Business that Seller is or other Person all material Taxes was required by applicable Law to be withhold, deduct or collect from or in connection with amounts paid, allocated, or owed to any employee, agent, contractor, member, shareholder or other Person, has been duly and timely withheld, deducted or collected, and, to the extent required, paid over to the proper Governmental Taxing Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (or other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidPerson.
(e) There is no material Tax audit No extensions or other examination waivers of the Company statutes of limitations have been given or any of its Subsidiaries presently in progress requested with respect to any material Taxes, nor has Tax of Seller related to the Company Acquired Assets or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesBusiness.
(f) Neither All deficiencies asserted or assessments made against Seller as a result of any written examination by any Taxing Authority with respect to any Tax related to the Company Acquired Assets or the Business have been fully paid or otherwise resolved.
(g) Seller is not currently a party to any Proceeding by any Taxing Authority with respect to any Tax related to the Acquired Assets or the Business. There are no pending or threatened Proceedings, in writing, by any Taxing Authority with respect to any Tax related to the Acquired Assets or the Business.
(h) None of the Acquired Assets represents an equity interest.
(i) There are no liens for Taxes upon the Acquired Assets, other than liens for Taxes not yet due and payable.
(j) Seller is not a party to, bound by, nor has any of its Subsidiaries has made a request for or entered into a obligation under, any closing agreement, private letter ruling, advance tax ruling Tax abatement agreement or similar any other agreement with any Governmental Authority relating to Taxes, in each case, with respect to Taxes. Neither the Company nor Acquired Assets or the Business.
(k) Seller has not received any of its Subsidiaries has made a change of claim from any method of accounting Taxing Authority with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is Acquired Assets or the Business in a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority jurisdiction where the Company or any of its Subsidiaries Seller does not file a type of Tax Returns Return or a pay a type of Tax that it Seller is or may be subject to taxation such Tax or required to file such Tax Return in that jurisdiction.
(jl) Neither Seller is not a party to any Tax allocation, Tax sharing, Tax indemnity, or Tax gross-up agreement with respect to the Company nor any of its Subsidiaries has participated in a “listed transaction” within Acquired Assets or the meaning of Treasury Regulation 1.6011-4(b)(2)Business.
(km) The Company has not beenThere are no material property or obligations, is notincluding uncashed checks, and immediately prior that are required to be escheated or reported as unclaimed property to any Governmental Entity under any applicable escheatment or unclaimed property Laws relating to the Share Exchange Closing will not be, treated as an “investment company” within Acquired Assets or the meaning of Section 368(a)(2)(F) of the CodeBusiness.
(ln) Except No Seller is a “foreign person” as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentdefined in Code Section 1445(f)(3).
Appears in 2 contracts
Sources: Asset Purchase Agreement (ARKO Petroleum Corp.), Asset Purchase Agreement (ARKO Corp.)
Taxes. (a) All Except as set forth in Section 3.15(a) of the Company Disclosure Schedule, all material Tax Returns that are required to be filed by or with respect to the Company or any of its Subsidiaries and each Company Subsidiary have been filed or will be filed in a timely filed manner (taking into account any with applicable extensionsextension periods), all and such Tax Returns (taking into account all amendments thereto) are true, correct accurate and complete in all material respects. All Taxes shown to be due on such Tax Returns have been timely paid in full or will be timely paid in full by the due date thereof, any deficiencies resulting from examinations of such Tax Returns have either been paid or are being contested in good faith, and no extensions or waivers of statutes of limitation have been given by or requested with respect to any Taxes of the Acquired Companies. The Company has made available to Parent copies of all material Taxes due Tax Returns, Tax opinions and payable legal memoranda, audit reports, letter rulings and similar documents for the Acquired Companies for the past three (whether or not shown on 3) years, including any Tax Return) have been paidruling obtained from any Israel Tax Authority. No power of attorney granted by the Company or any of the Company Subsidiaries with respect to any Taxes is currently in force.
(b) The Company and each of its Subsidiaries Acquired Companies have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and related reporting requirements with respect have duly and timely withheld and have paid over to such Taxesthe appropriate Governmental Authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(c) There are no Liens for Taxes (other than Permitted Liens) upon Neither the property or assets Company nor any Company Subsidiary has received notice of any claim made by a Governmental Authority in a jurisdiction in which the Company or any of its SubsidiariesCompany Subsidiary does not file Tax Returns that the Company or a Company Subsidiary may be required to file Tax Returns or to pay Taxes to that jurisdiction.
(d) No claimfederal, assessmentstate, deficiency local or proposed adjustment for any material amount foreign audits, examinations or other administrative proceedings have been commenced and, are currently pending or, to the knowledge of Tax has the Company, have been asserted otherwise threatened (in writing or assessed by otherwise) with regard to any Governmental Authority against the Company or Tax Returns with respect to Taxes of any of its Subsidiaries that remains unresolved or unpaidAcquired Company.
(e) There is no material Tax audit Lien (other than for current Taxes not yet due and payable) against the assets of any of the Acquired Companies.
(f) The Transactions (including the Merger) will not result in the payment or other examination series of payments by the Company or any of the Company Subsidiaries to any person of an “excess parachute payment” within the meaning of Section 280G of the Code, or any similar payment, which is not deductible for federal, state, local, or foreign Tax purposes. Additionally, there is no contract to which the Company or any of the Company Subsidiaries is a party, or by which it is bound, which, individually or collectively, (i) could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) or Section 280G of the Code, (ii) is subject to Section 409A of the Code, or (iii) could require the Company, the Company Subsidiaries or Parent or its subsidiaries to gross up a payment to any employee of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company Subsidiaries for Tax related payments or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made cause a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any penalty Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) 409A of the Code.
(lg) The accruals and reserves for Taxes reflected on the Balance Sheet, are adequate in all material respects to cover all Taxes accruable through such date (including interest and penalties, if any, thereon) and any reserve for deferred Taxes to reflect timing differences between book and Tax items or carryforwards for all Tax periods and portions thereof, in each case in accordance with U.S. GAAP.
(h) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.set forth in Section 3.15(h)
Appears in 2 contracts
Sources: Merger Agreement (Retalix LTD), Merger Agreement (Retalix LTD)
Taxes. (a) All Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (a) the Company and each of its subsidiaries and Affiliated Entities have duly and timely filed (taking into account any extensions of time for filing) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, (b) the Company and each of its subsidiaries and Affiliated Entities have timely paid all material Taxes due and payable (whether or not shown on any such Tax Return) Returns), except Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been paid.
(b) The established in accordance with GAAP in the Company and each of its Subsidiaries have withheld from amounts owing to any employeeSEC Documents, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There there are no material audits, examinations, investigations or other proceedings in respect of income or other material Taxes of the Company or any of its subsidiaries or Affiliated Entities that are in progress, (d) no material deficiency or proposed adjustment which has not been paid or resolved for any amount of Tax has been asserted or assessed by any taxing authority in writing against the Company or any of its subsidiaries or Affiliated Entities, (e) neither the Company nor any of its subsidiaries or Affiliated Entities has consented to extend the time in which any material Tax may be assessed or collected by any taxing authority, (f) there are no material Liens for Taxes (other than Permitted Liens) upon any of the property or assets of the Company or any of its Subsidiaries.
subsidiaries or Affiliated Entities, (dg) No claimall material Taxes that the Company and its subsidiaries and Affiliated Entities have been required to collect or withhold have been duly collected or withheld and to the extent required, assessmenthave been duly paid to the proper taxing authority, deficiency (h) neither the Company nor any of its subsidiaries or proposed adjustment for Affiliated Entities has participated in any material amount of Tax “listed transaction” as defined in Treasury Regulations Section 1.6011-4, (i) no written claim has been asserted in writing or assessed made by any Governmental Authority against taxing authority in a jurisdiction where the Company or any of its Subsidiaries subsidiaries or Affiliated Entities, as the case may be, does not file Tax Returns that remains unresolved the Company or unpaid.
any of such subsidiaries or Affiliated Entities is or may be subject to Tax by that jurisdiction, (ej) There is no material neither the Company nor any of its subsidiaries or Affiliated Entities has been a member of any “affiliated group” as defined in Section 1504 of the Code (other than an affiliated group the common parent of which was the Company) filing a consolidated United States federal income Tax audit Return or other examination group filing a consolidated, combined, affiliated, unitary or similar income Tax Return, (k) neither the Company nor any of its subsidiaries or Affiliated Entities has any liability for Taxes of any other person (other than the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has subsidiaries or Affiliated Entities) arising from the Company or any application of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar analogous provision of state, local or foreign Tax Law or Law, as a transferee or successor successor, or otherwise, (l) neither the Company nor any of its subsidiaries or Affiliated Entities is a party to or bound by Contract any Tax sharing, Tax indemnity or similar agreement or arrangement (in each case, other than customary ancillary provisions in commercial Contracts (or Contracts agreements that do not relate primarily to Taxes entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member the business of an affiliatedthe Company, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent any subsidiary of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Affiliated Entity).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F(m) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action subsidiaries or agreed Affiliated Entities was a “distributing corporation” or “controlled corporation” in a transaction intended to take any action, nor to the knowledge qualify under Section 355 of the Company or any Code within the past two (2) years.
(b) For purposes of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Taxes. Except as has not had, individually or in the aggregate, a Company Material Adverse Effect:
(a) All material Tax Returns required by Applicable Law to be filed with any Taxing Authority by the Company or any of its Subsidiaries have been filed when due (giving effect to all extensions) in accordance with all Applicable Law, and all Tax Returns that have been filed with a Taxing Authority are true, correct and complete in all respects.
(b) Each of the Company and its Subsidiaries has paid (or has had paid on its behalf) all Taxes due and owing (whether or not shown on any Tax Return), except for Taxes being contested in good faith pursuant to appropriate procedures for which an adequate reserve has been established on the books and records of the Company or its applicable Subsidiary.
(c) Each of the Company and its Subsidiaries has duly and timely withheld all Taxes required to be withheld, and such withheld Taxes have been either duly and timely paid to the proper Taxing Authority or properly set aside in accounts for payment when due.
(d) There is no audit, claim, action, suit, proceeding or other investigation pending or, to the Company’s knowledge, threatened in writing against or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respectsrespect of Taxes, and all material Taxes due and payable (whether there is no Tax deficiency outstanding, proposed or not shown on assessed against the Company or any Tax Return) have been paidSubsidiary of the Company.
(be) The Neither the Company and each nor any of its Subsidiaries have withheld from amounts owing to has waived any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements statute of limitations with respect to such TaxesTaxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which waiver is still in effect, and no power of attorney that has been granted by the Company or any Subsidiary of the Company with respect to a Tax matter is currently in effect.
(cf) During the two year period ending on the date of this Agreement, the Company was not a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a transaction intended to qualify for tax-free treatment under Section 355 of the Code.
(g) There are no Liens for Taxes (other than Permitted Liens) upon on any of the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount Subsidiaries and no circumstances as a result of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than which any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Liens could be imposed.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group one of which the Company or any of its Subsidiaries was the common parent parent, (ii) is party to any agreement relating to the apportionment, sharing, assignment or allocation of which was Taxes (other than (x) an agreement solely between or is among the Company and/or one or more of its Subsidiaries or (y) ordinary course commercial agreements that are not primarily related to Taxes), (iii) has entered into a closing agreement pursuant to Section 7121 of the Code, or any similar provision of state, local or non-U.S. law or (iv) has any liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. law) or as a transferee, successor by Contract (other than (x) a Contract solely between or among the Company and/or one or more of its Subsidiaries or (y) leases or loan agreements that are not primarily related to Taxes) or otherwise.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file Tax Returns that it is will be required to include any item of income in, or may be subject exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (1) any change in method of accounting occurring prior to taxation the Closing pursuant to Section 481 of the Code (or any similar provision of state, local, or foreign Applicable Law), (2) any installment sale or open transaction made prior to Closing, (3) any intercompany transaction or excess loss account described in that jurisdictionTreasury Regulations under Section 1502 of the Code (or any similar provision of state, provincial, local or foreign Applicable Law) entered into prior to or existing as of immediately prior to the Closing, (4) any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing, (5) any deferred revenue or prepaid amount received or paid prior to the Closing outside of the ordinary course of business, or (6) any election pursuant to Section 108(i) of the Code.
(j) Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) The No jurisdiction in which the Company or any of its Subsidiaries does not file a Tax Return has asserted in writing a claim that has not been, is not, and immediately prior been resolved to the Share Exchange Closing will not be, treated as an “investment company” within effect that the meaning of Section 368(a)(2)(F) of the CodeCompany or such Subsidiary is subject to Taxes or required to file Tax Returns in such jurisdiction.
(l) Except Neither the Company nor any Subsidiary of the Company has applied for any relief under, taken advantage of, deferred the payment of Tax or the recognition of taxable income or gain as contemplated by this Agreement and the Transactions contemplated herebyresult of, neither or is otherwise subject to any provision of a Pandemic Response Law.
(m) Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any actionaction or knows of any fact, nor to the knowledge of the Company agreement, plan or any of its Subsidiaries are there any facts or circumstances, other circumstance that could is reasonably be expected likely (i) to prevent the Transactions Merger from qualifying for the Intended Tax Treatment, (ii) to cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code, or (iii) to prevent or impede the Company from being able to deliver the executed Company Tax Certificate at Closing. As of the date of this Agreement, the Company believes it will be able to provide the Company Tax Certificate at the Closing.
Appears in 2 contracts
Sources: Merger Agreement (Chiasma, Inc), Merger Agreement (Amryt Pharma PLC)
Taxes. (a) All The Company and its Subsidiaries (i) have duly filed all income and all other material Tax Returns required to be have been filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
, and all such Tax Returns are true and correct in all material respects; (dii) No claim, assessment, deficiency or proposed adjustment have within the time and manner prescribed by applicable Law paid all Taxes required to be paid by each of them; (iii) as of the date of this Agreement have adequate accruals and reserves on the financial statements included in the Company SEC Documents for Taxes in accordance with GAAP; and (iv) as of the date of this Agreement have not received written notice of any deficiencies for any material amount of Tax has been asserted in writing or assessed by from any Governmental Authority Taxing Authority, against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of for which there are not adequate reserves on the financial statements included in the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) SEC Documents. Neither the Company nor any of its Subsidiaries has made a request for is the subject of any pending or entered into a closing agreementcurrently ongoing Tax audit, private letter ruling, advance tax ruling Action or similar agreement with any Governmental Authority other proceeding with respect to TaxesTaxes nor has any Tax audit, Action or other proceeding with respect to Taxes been proposed against any of them in writing. Neither the Company nor any of its Subsidiaries has made a change waived any statute of limitations in respect of Taxes or agreed to any method extension of accounting time with respect to a Tax assessment or deficiency. There are no Liens with respect to Taxes upon any Taxes.
of the properties or assets, real or personal, tangible or intangible of the Company or any of its Subsidiaries (g) other than Permitted Liens). No claim has ever been made in writing by a Taxing Authority of a jurisdiction where the Company or one of its Subsidiaries has not filed Tax Returns claiming that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction. Neither the Company nor any of its Subsidiaries is a party to has any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between liability for the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person another person (other than the Company and its Subsidiaries) under pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxesnon-U.S. law) or otherwise) by reason of (iii) has ever been being a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group of which the common parent of which was or is the Company or otherwise as a transferee or successor or (ii) being party to any Tax sharing or Tax indemnification agreement or other similar agreement (other than customary Tax indemnification provisions in commercial agreements or arrangements, in each case not primarily relating to Taxes). Neither the Company nor any of its Subsidiariesthe Subsidiaries will be required to include any material item of income in, or to exclude any material item of deductions from, taxable income from any taxable period (or portion thereof) ending after the Merger Closing as a result of any (i) change in method of accounting or (ii) closing agreement.
(ib) Within the past three (3) years, no written claim has been made by any Governmental Authority where Each of the Company and its Subsidiaries has timely and duly withheld and paid all Taxes to the appropriate Taxing Authority required to have been withheld and paid by them in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. The Company has timely and duly collected and remitted to the appropriate Taxing Authority all Taxes required to be collected and remitted by it.
(c) Neither the Company nor any of its Subsidiaries does was a “distributing corporation” or “controlled corporation” in a transaction intended to qualify under Section 355 of the Code within the past two years. The Company is not file Tax Returns that it is or may be subject to taxation and has not been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period set forth in that jurisdictionSection 897(c)(1)(A)(ii) of the Code.
(jd) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2)4.
(ke) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning For purposes of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Taxes. (a) All material Seller has timely filed (or had timely filed on its behalf) all Tax Returns required to be filed by or with respect to the Company Purchased Assets or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), the Business that they were required to file and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respects, and . Seller has paid (or had paid on its behalf) all material Taxes due and payable with respect to the Purchased Assets or the Business that are required to be paid by any of it (whether or not shown on any Tax Return) have been paid).
(b) The Company There are no Encumbrances, other than for current Taxes not yet due and each of its Subsidiaries have withheld from amounts owing to payable, for Taxes upon any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such TaxesPurchased Asset.
(c) There are No extension of time within which to file any Tax Return with respect to the Purchased Assets or the Business is in effect, and no Liens for waiver of any statute of limitations relating to Taxes (other than Permitted Liens) upon payable with respect to the property Business or assets of the Company or any of its SubsidiariesPurchased Assets has been granted.
(d) No claimTo the Knowledge of Seller, assessmentthere is no audit or administrative or judicial proceeding pending, deficiency being conducted, or proposed adjustment for any material amount claimed with respect to the Tax status of the Seller or Tax has been asserted in writing Returns of, or assessed by any Governmental Authority against Taxes payable with respect to the Company Business or any of its Subsidiaries that remains unresolved or unpaidthe Purchased Assets.
(e) There To the Knowledge of Seller, there is no material Tax audit notice of proposed adjustment, deficiency, underpayment of Taxes or any other examination of the Company such notice from a Governmental Entity which has not been satisfied by payment or been withdrawn that has been received by Seller or any of its Subsidiaries presently in progress Affiliates with respect to any material Taxes, nor has the Company Purchased Assets or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, the Business and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority Entity in a jurisdiction where Tax Returns are not filed with respect to the Company Purchased Assets or the Business that Taxes are required to be paid in or Tax Returns are required to be filed in that jurisdiction by Seller or with respect to the Purchased Assets or the Business.
(f) All material Taxes which were required by Law to be withheld, deducted, or to be collected for payment in connection with amounts paid or owing to or allocable to any employee, independent contractor, creditor, stockholder, or other Person by Seller or with respect to the Purchased Assets or the Business, have been duly withheld, deducted and collected and have been paid to the appropriate Governmental Entity or set aside or reserved on the Product Records, and all reporting and recordkeeping requirements related thereto have been complied with.
(g) No Purchased Asset (including Assumed Contracts) will result in Purchaser or any of its Subsidiaries does not file Tax Returns that it is Affiliates having any liability or may be subject obligation to taxation in that jurisdictionpay, reimburse, or indemnify any Person for Taxes of any other Person.
(jh) Neither Seller has not made any election to defer any payroll Taxes under the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)CARES Act.
(ki) The Company has not been, Seller is not, and immediately prior to the Share Exchange Closing will not be, treated a domestically organized corporation that qualifies as an “investment company” within the meaning of organization described in Section 368(a)(2)(F501(c)(3) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Finch Therapeutics Group, Inc.), Asset Purchase Agreement (Finch Therapeutics Group, Inc.)
Taxes. (a) All material Tax Returns The Company and each of its subsidiaries have timely filed or caused to be filed all federal, state, local, foreign and other returns, estimates, information statements and reports ("Returns") relating to Taxes (as defined in Section 3.7(r)) required to be filed by or with respect to on behalf of the Company or any and each of its Subsidiaries have been timely filed (taking into account subsidiaries with any applicable extensions), all such Tax authority. Such Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and the Company and each of its subsidiaries have timely paid all material Taxes due and payable (due, whether or not shown on any Tax Return) such Taxes have been paidshown to be due on such Returns. Neither the Company nor any of its subsidiaries has requested an extension of time within which to file any Return.
(b) The Company and each of its Subsidiaries subsidiaries have withheld from amounts owing with respect to any employeeits employees and other persons all federal and state income Taxes, creditor or Taxes pursuant to the Federal Insurance Contribution Act ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are The Company and its subsidiaries have not executed any unexpired waiver of any statute of limitations on or extended the period for the assessment or collection of any Tax, and no Liens for Taxes power of attorney with respect to Tax matters has been executed or filed with any Tax authority.
(d) No audit or other than Permitted Liens) upon the property or assets examination of any Return of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed subsidiaries by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There Tax authority is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for examination that is reasonably likely to result in any waivers or extensions of any statute of limitations currently in effect with respect adjustment.
(e) No adjustment relating to any material Taxes of Returns filed by the Company or any of its Subsidiariessubsidiaries has been proposed formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(f) Neither The unpaid Taxes of the Company nor any and its subsidiaries did not, as of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the date of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect Balance Sheet, exceed the reserve for actual Taxes (as opposed to any Taxesreserve for deferred Taxes established to reflect timing differences between book and Tax income) as shown on the Company Balance Sheet, and will not exceed such reserve as adjusted for the passage of time through the Closing Date in accordance with reasonable past custom and practice of the Company.
(g) Neither Assuming no significant appreciation in the value of Parent Common Stock from the date hereof, there is no agreement, plan or arrangement to which the Company nor or any of its Subsidiaries subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between party, including this Agreement and the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts agreements entered into in connection with this Agreement, that, individually or collectively, would give rise to the ordinary course payment of businessany amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) not primarily related to Taxes)of the Code, or which would impose a withholding Tax obligation on Parent, the Company or any of its subsidiaries or the Surviving Corporation for amounts described in Section 4999 of the Code.
(h) Neither the Company nor any of its Subsidiaries subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (if) is liable for Taxes asset (as defined in Section 341(f)(4) of any other Person (other than the Company and its SubsidiariesCode) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or owned by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessubsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does subsidiaries is party to or has any obligation under any Tax-sharing, Tax indemnity or Tax allocation agreement or arrangement (including but not file limited to any advance pricing agreement, closing agreement or other agreement relating to Taxes with a Tax Returns that it is or may be subject to taxation in that jurisdictionauthority).
(j) Neither the Company nor any of its Subsidiaries subsidiaries has participated been or will be required (either as a result of the transactions contemplated by this Agreement or otherwise) to include in taxable income attributable to, or that accrued in, a prior taxable period but was not recognized in a “listed transaction” within prior taxable period as a result of the meaning installment method of Treasury Regulation 1.6011-4(b)(2)accounting, the completed contract method of accounting, the cash method of accounting or under Section 481 of the Code or any comparable provision of any other Tax law or for any other reason.
(k) The Neither the Company nor any of its subsidiaries has not been, is not, and immediately prior to been distributed in a transaction qualifying under Section 355 of the Share Exchange Closing will not be, treated as an “investment company” Code within the meaning last two (2) years, nor has the Company or any of its subsidiaries distributed any corporation in a transaction qualifying under Section 368(a)(2)(F) 355 of the CodeCode within the last two years.
(l) There are no outstanding rulings of, or requests for rulings with, any Tax authority addressed to the Company or any of its subsidiaries that are, or if issued would be, binding on the Company or any of its subsidiaries.
(m) Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated federal income tax return (other than a group the common parent of which was the Company), and neither the Company nor any of its subsidiaries has any liability for the Taxes of any person under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign Tax law), as a transferee or successor, by contract, or otherwise.
(n) Except as contemplated by this Agreement and set forth on Section 3.7(n) of the Transactions contemplated herebyCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries subsidiaries has, or has taken had, a permanent establishment in (or would otherwise be treated as having engaged in business in), any action or agreed foreign country.
(o) None of the shares of Company Common Stock outstanding are subject to take a "substantial risk of forfeiture" within the meaning of Section 83 of the Code.
(p) There are no encumbrances for Taxes (except for encumbrances for Taxes not yet due and payable) on any action, nor to of the knowledge assets of the Company or any of its Subsidiaries are there subsidiaries.
(q) Except as set forth on Section 3.7(n) of the Company Disclosure Schedule, neither the Company nor any facts of its subsidiaries owns or circumstanceshas owned, directly, indirectly or by attribution, any interest in an entity that would be treated as a "passive foreign investment company" within the meaning of Section 1297 of the Code. Neither the Company nor any of its subsidiaries is a party to any joint venture, partnerships, limited liability company or other arrangement which could reasonably be expected treated as a partnership for Tax purposes.
(r) For the purposes of this Agreement, "Tax" or "Taxes" refers to prevent (i) any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts, (ii) any liability for payment of any amounts of the Transactions from qualifying type described in clause (i) as a result of being a member of an affiliated consolidated, combined or unitary group, and (iii) any liability for amounts of the Intended Tax Treatmenttype described in clauses (i) and (ii) as a result of any express or implied obligation to indemnify another person or as a result of any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Digene Corp), Agreement and Plan of Merger (Digene Corp)
Taxes. (a) All material Tax Returns required The Company and each of the Company Subsidiaries has timely filed, or has caused to be filed timely filed, in the manner required by or with respect to the Company or any of its Subsidiaries have been timely filed law (taking into account any applicable extensions), all such Tax Returns (after taking into account all amendments theretoapplicable extensions) with the appropriate Taxing Authority all material Tax Returns in all jurisdictions in which Tax Returns are required to be filed, and such Tax Returns are true, correct and complete in all material respects, and all . Neither the Company nor any of the Company Subsidiaries is the beneficiary of any extension of time within which to file any material Tax Return. All material Taxes due of the Company and payable each of the Company Subsidiaries (whether or not shown on any Tax Return) that have become due or payable have been paid.
(b) The Company fully and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes timely paid in the manner required by law (after taking into account all applicable Law extensions), or such Taxes are being contested in good faith and proper accruals pursuant to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to U.S. GAAP have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements established on the Company’s consolidated financial statements with respect to such Taxes.
(c) thereto. There are no Liens liens for any material amount of Taxes (other than Permitted Liens) upon the a lien for current real property or ad valorem Taxes not yet due and payable) on any of the assets of the Company or any of its the Company Subsidiaries.
(db) No claimNeither the Company nor any of the Company Subsidiaries has received any notice of any disputes, assessmentclaims, deficiency audits, examinations, assessments or proposed adjustment for assessments regarding any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waiversdisputes, extensions claims, audits, examinations, assessments or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to proposed assessments regarding any material amount of Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor Subsidiaries or the assets of the Company or any of its the Company Subsidiaries has made a request for that (i) are pending or entered into a closing agreement(ii) have been threatened in writing , private letter ruling, advance tax ruling or similar agreement with any Governmental Authority unless such Taxes are being contested in good faith and proper accruals pursuant to U.S. GAAP have been established on the Company’s consolidated financial statements with respect to Taxesthereto. Neither the Company nor any of its the Company Subsidiaries has made a change waived any statute of limitations in respect of any method material amount of accounting with respect Taxes or agreed to any Taxesa material Tax assessment or deficiency.
(gc) Neither Proper accruals pursuant to U.S. GAAP have been established (and until the Company nor any Closing Date will be maintained) on the Company’s consolidated financial statements adequate to pay all Taxes of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing each of the Company Subsidiaries not yet due and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)payable.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kd) The Company is not now and has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” never been a United States real property holding corporation within the meaning of Section 368(a)(2)(F897(c)(1)(A)(ii) of the Code.
(le) Except as contemplated by this Agreement The Company and the Transactions contemplated hereby, neither each of the Company nor Subsidiaries have delivered or made available to Parent correct and complete copies of all (i) Tax Returns filed by or including the Company or any of its the Company Subsidiaries has taken any action and (ii) all examination reports by a Taxing Authority and other relevant written materials with respect to audits (whether proposed, threatened, pending or agreed to take any action, nor concluded) related to the knowledge three taxable years ending prior to the Closing Date of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCompany Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Pxre Group LTD), Merger Agreement (Pxre Group LTD)
Taxes. (a) All income and all other material Tax Returns required to be filed by by, or with respect to on behalf of, the Company or any of its Subsidiaries Company Subsidiary have been duly and timely filed (taking into account any applicable extensionsextension of time to file), all and each such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, .
(b) All income and all other material Taxes due and payable owed by the Company or any Company Subsidiary or for which the Company or any Company Subsidiary may otherwise be liable (whether or not shown on any Tax Return) have been paidpaid in full, except for Taxes being contested in good faith and for which adequate reserves have been established in accordance with US GAAP.
(bc) The Company and each of its Subsidiaries Company Subsidiary have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheldwithheld by the Company or Company Subsidiary, as applicable, paid over to the proper Governmental Taxing Authority in a timely manner all such material withheld amounts required to have been so paid over over, and complied complied, in all material respects respects, with all applicable withholding and related reporting requirements with respect to such Taxes.
(cd) There are no Liens Neither the Company nor any Company Subsidiary has received any written claim from any Taxing Authority for any material unpaid Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimCompany Subsidiary that has not been paid or resolved, and no assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted asserted, proposed or threatened in writing or assessed by any Governmental Taxing Authority with respect to any Taxes or Tax Returns of the Company or any Company Subsidiary, in each case that has not been paid or resolved.
(e) No audit, examination, investigation, litigation or other administrative or judicial proceeding in respect of income or other material Taxes or Tax matters is pending, being conducted or has been threatened in writing by any Taxing Authority against the Company or any of its Subsidiaries Company Subsidiary, in each case that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries not been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesresolved.
(f) Neither the Company nor any Company Subsidiary has received written notice of its Subsidiaries has made any claim from a request for or entered into Taxing Authority in a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither jurisdiction in which the Company nor or any of its Subsidiaries has made a change of Company Subsidiary does not file Tax Returns stating that the Company or any method of accounting with respect Company Subsidiary is or may be subject to any TaxesTax in such jurisdiction.
(g) Neither There are no Liens or encumbrances for material Taxes upon any of the assets of the Company nor or any Company Subsidiary except for Permitted Liens described in clause (c) of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)definition thereof.
(h) Neither the Company nor any Company Subsidiary is a party to, is bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement, in each case, other than an agreement, contract or arrangement the primary purpose of its Subsidiaries which does not relate to Taxes.
(i) is liable Neither the Company nor any Company Subsidiary has been a member of an affiliated group filing a consolidated, combined or unitary Tax Return (other than a group of which the Company or a Company Subsidiary was the common parent). Neither the Company nor any Company Subsidiary has any material liability for the Taxes of any other Person person (other than the Company and its Subsidiariesor any Company Subsidiary) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or non-U.S. law), as a transferee or successor successor, by contract, or by Contract (other than customary commercial Contracts (or Contracts entered into otherwise, in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposeseach case, other than a group an agreement, contract or arrangement the common parent primary purpose of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject relate to taxation in that jurisdictionTaxes.
(j) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated engaged in or entered into a “listed transaction” within the meaning of Section 6707A(c) of the Code and Treasury Regulation Regulations Section 1.6011-4(b)(2)4(b) or any similar provision of non-U.S. Tax Law.
(k) The Company has not beenmade available to Parent true and complete copies of all material income Tax Returns filed by the Company and any Company Subsidiary for the 2019, is not, 2020 and immediately prior to 2021 tax years.
(l) Neither the Share Exchange Closing will not be, treated as an “investment company” Company nor any Company Subsidiary has within the meaning last two (2) years 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 Section 368(a)(2)(F) 355 or Section 361 of the Code.
(lm) Except Each of the Company and Company Subsidiaries is, and has been since its formation, classified as contemplated by this Agreement and set forth on Section 4.14(m) of the Transactions contemplated hereby, neither Company Disclosure Schedule for U.S. federal income tax purposes.
(n) Neither the Company nor any Company Subsidiary will be required to include any material amount, or exclude any material item of deduction or loss, from taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. Tax Law) or (iii) by reason of Section 965(a) of the Code or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or non-U.S. Tax Law).
(o) Neither the Company nor any Company Subsidiary has a permanent establishment in any country other than the country of its Subsidiaries has taken any action organization, or agreed is subject to take any action, nor to income Tax in a jurisdiction outside the knowledge of the Company or any country of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentorganization.
Appears in 2 contracts
Sources: Business Combination Agreement (Rosecliff Acquisition Corp I), Business Combination Agreement (Rosecliff Acquisition Corp I)
Taxes. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensionsvalid extensions of time for filing), and all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material . All Taxes that are due and payable by the Company or any of its Subsidiaries (whether or not shown reflected on any Tax Return) have been paidduly and timely paid or adequate reserves in respect thereof have been established on the financial statements of the Company in accordance with GAAP. All withholding Tax requirements imposed on or with respect to payments by the Company or any of its Subsidiaries to employees, creditors, equityholders or other Persons have been satisfied, and the Company and its Subsidiaries have complied in all respects with all related information reporting and record retention requirements.
(bii) The There is not in force any waiver or agreement for any extension of time for the assessment or payment of any Tax by the Company and each or any of its Subsidiaries have withheld from amounts owing (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), and no power of attorney that has been granted by the Company or any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements of its Subsidiaries with respect to such Taxesa Tax matter is currently in effect.
(ciii) There is no outstanding claim, assessment or deficiency against the Company or any of its Subsidiaries for any Taxes that has been asserted in writing by any Taxing Authority. There are no Liens for Proceedings with respect to Taxes (other than Permitted Liens) upon the property pending or assets of threatened in writing against the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fiv) Neither the Company nor any of its Subsidiaries has been a member of an affiliated, consolidated, combined, unitary or similar group for purposes of filing any Tax Return (other than a group the common parent of which is the Company or any of its Subsidiaries) or has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by reason of assumption or by operation of Law.
(v) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (1) any change in method of accounting occurring prior to the Closing pursuant to Section 481 of the Code (or any similar provision of state, local, or non-U.S. Law), (2) any installment sale or open transaction made a request for prior to Closing, (3) any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to or existing as of immediately prior to the Closing, (4) any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing, or (5) any deferred revenue or prepaid amount received or paid prior to the Closing outside of the ordinary course of business.
(vi) No written claim has been made by any Taxing Authority in a closing agreementjurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Return that the Company or such Subsidiary is or may be subject to any Tax or required to file any Tax Return in such jurisdiction.
(vii) There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority except for Permitted Encumbrances with respect to Taxes. Taxes described in clause (b) of the definition of Permitted Encumbrances.
(viii) Each of the Company and its Subsidiaries are in compliance with all applicable transfer pricing Tax Laws, including Section 482 of the Code and the Treasury Regulations promulgated thereunder and any similar provision of state, local or non-U.S. Tax Law.
(ix) Neither the Company nor any of its Subsidiaries has made participated, or is currently participating, in a change of any method of accounting with respect to any Taxes“listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(gx) Neither the Company nor any of its Subsidiaries has applied for any relief under, deferred the payment of Tax or the recognition of taxable income or gain as result of, or is otherwise subject to any Tax provision of, a Pandemic Response Law.
(b) Neither the Company nor any of its Subsidiaries is a party to, has any obligation under or is bound by any material Tax allocation, sharing or indemnity Contract or arrangement pursuant to which it will have any potential material liability to any Person after the First Merger Effective Time (excluding (i) the Tax indemnification Matters Agreement, (ii) any Contract or Tax sharing or similar Tax agreement (other than any such agreement arrangement solely between or among the Company and/or any of its Subsidiaries, and its existing Subsidiaries and (iii) any customary provisions contained in any commercial Contracts (or Contracts agreement entered into in the ordinary course of business) business and not primarily related relating to TaxesTax).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jc) Neither the Company nor any of its Subsidiaries has participated constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the two (2) years prior to the date of this Agreement.
(d) To the knowledge of the Company, the consummation of the Transactions is not reasonably expected to cause (x) the Spin to fail to qualify for tax-free treatment under Section 355 of the Code or (y) the Company shares distributed in the Spin to not be treated as “listed transactionqualified property” within (for purposes of Section 355(c)(2) or Section 361(c)(2) of the meaning Code) by reason of Treasury Regulation 1.6011-4(b)(2the application of Section 355(d) or Section 355(e) of the Code).
(ke) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to To the knowledge of the Company, (i) no property or liabilities have been transferred to or from the Company or any of its Subsidiaries are there (including by contribution or distribution) as, and (ii) the Spin was not, in the case of either clause (i) or (ii), part of a plan a principal purpose of which was to avoid the purposes of Section 7874 of the Code.
(f) To the knowledge of the Company, as of the date of this Agreement, the Company is not in material breach of any facts representation, warranty, or circumstances, that could covenant under the Tax Matters Agreement.
(g) The consummation of the Transactions is not reasonably be expected to prevent cause the Company to be in material violation of its representations, warranties, and covenants in the Tax Matters Agreement (without regard to whether the Transactions from qualifying will cause (x) the Spin to fail to qualify for tax-free treatment under Section 355 or (y) the Intended Tax TreatmentCompany shares distributed in the Spin to not be treated as “qualified property” (for purposes of Section 355(c)(2) or Section 361(c)(2) of the Code) by reason of the application of Section 355(d) or Section 355(e) of the Code).
(h) No material closing agreements, private letter rulings, technical advice memoranda or similar written agreements or rulings have been entered into with or issued by any Taxing Authority within the three (3)-year period immediately preceding the date of this Agreement with respect to the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)
Taxes. (a) All material The Company and each of its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and ; (ii) have paid all material amounts of Taxes due and payable (whether or not shown on any Tax ReturnReturns); (iii) have been paid.
(b) The paid all material amounts of Taxes that the Company and each or any of its Subsidiaries have withheld are obligated to withhold from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to third party; (iv) have been so paid over and complied in all material respects with all applicable withholding the collection and related reporting requirements with respect to such Taxes.
(c) There are no Liens for remittance of sales and similar Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against that the Company or any of its Subsidiaries that remains unresolved are obligated to collect and remit; and (v) have not waived any statute of limitations with respect to Taxes or unpaidagreed to any extension of time with respect to a Tax assessment or deficiency.
(eb) There are no Actions pending or, to the Knowledge of the Company, that have been threatened in respect of Taxes or Tax matters.
(c) There is no material Tax audit Lien (other than a Permitted Lien) on any of the assets of the Company or other examination those of any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay, or delay (or alleged delay) in paying, any Tax.
(d) No claim has been made within the past six years, in writing, by a Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has do not file Tax Returns that the Company or any of its Subsidiaries been notified in writing of any request Subsidiary is or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect may be subject to any material Taxes of the Company or any of its Subsidiariestaxation by that jurisdiction.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(ge) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or allocation, Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts Contract entered into in before the ordinary course of business) not primarily related Closing pursuant to Taxes)which it will have any obligation after the Closing.
(hf) Neither the Company nor any of its Subsidiaries (i) is liable has any liability for Taxes of any other Person, including any obligation to indemnify or otherwise succeed to the liability of any other Person for Taxes, as a transferee or successor, or pursuant to any Law (other than the Company and its Subsidiaries) under including Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law)), Contract, or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(ig) Within the past three (3) years, no written claim has been made All material transactions entered by any Governmental Authority where the Company or any of its Subsidiaries does not file have satisfied applicable transfer pricing Laws.
(h) There are no Tax Returns that it is rulings, requests for rulings or may closing agreements in effect or pending with any Governmental Entity relating to the Company or any of its Subsidiaries the effect of which would be subject binding on the Company or any of its Subsidiaries after the Closing Date.
(i) Neither the Company nor any of its Subsidiaries will be required to taxation include any material item of income, or exclude any material item of deduction from, taxable income for any taxable period ending after the Closing Date as a result of any (i) change in that jurisdictionmethod of accounting under Section 481 of the Code (or any similar provision of state, local or foreign Law), (ii) use of an improper method of accounting, (iii) closing agreement as described under Section 7121 of the Code (or any similar provision of state, local or foreign Law), (iv) intercompany transaction or excess loss account under Section 1502 of the Code and the Treasury Regulations thereunder (or any similar provision of state, local or foreign Law), (v) installment sale or open transaction disposition; (vi) any prepaid amount; or (vii) an election under Section 108(i) of the Code.
(j) Neither the Company nor any of its Subsidiaries has participated in a entered into any “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(k) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated herebypast three years, neither the Company nor any of its Subsidiaries has taken any action been a “distributing corporation” or agreed a “controlled corporation” in a distribution intended to take any action, nor to the knowledge qualify under Section 355(a) of the Code.
(l) Neither the Company or nor any of its Subsidiaries are there any facts has a permanent establishment (within the meaning of an applicable Tax treaty) or circumstancesotherwise has an office or fixed place of business in a country other than the country in which it is organized.
(m) The Company has made available to Parent true and correct copies of the United States federal income Tax Returns filed by the Company and its Subsidiaries for each of the fiscal years ended in 2015, 2014 and 2013.
(n) It is agreed and understood that could reasonably be expected to prevent no representation or warranty is made by the Transactions from qualifying for Company in this Agreement in respect of Tax matters, other than the Intended Tax Treatmentrepresentations and warranties set forth in Section 4.5, Section 4.6, Section 4.7(c), Section 4.8 and this Section 4.14.
Appears in 2 contracts
Sources: Merger Agreement (G&k Services Inc), Merger Agreement (Cintas Corp)
Taxes. Except as set forth in Section 3.14(a) of the Company Disclosure Letter:
(a) All The Company and each of its Subsidiaries has timely filed or caused to be filed (giving effect to all applicable extensions) with the appropriate Governmental Entity all material Tax Returns in all jurisdictions in which such Returns are required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination . None of the Company or any of its Subsidiaries presently is the beneficiary of any extension of time within which to file any Return (other than any extensions to file Returns obtained in progress with respect to any the ordinary course of business). All material Taxes, nor has Taxes of the Company or any of its Subsidiaries (whether or not shown on any Returns) that are due have been notified fully and timely paid to the relevant Governmental Entity.
(b) Neither the Company nor any of its Subsidiaries has received any notice of assessment or proposed assessment in writing connection with any material amount of any request or threat for such an audit or other examinationTaxes, and there are no waiversthreatened or pending disputes, extensions claims, audits, examinations, investigations or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to other proceedings, regarding any material Taxes of the Company or any of its Subsidiaries which have not been fully paid or settled. There are no Liens for any material amount of Taxes (other than Permitted Liens) on any of the assets of the Company or any of its Subsidiaries. No claim has been made by any Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries does not file a Return that such Person may be subject to a material amount of Taxes in that jurisdiction. None of the Company or any of its Subsidiaries has waived any statute of limitations in respect of a material amount of Taxes.
(fc) The Company and each of its Subsidiaries has complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof to appropriate Governmental Entity.
(d) Neither the Company nor any of its Subsidiaries has made been a request member of an affiliated group filing a consolidated federal income Tax return (other than a group the common parent of which was the Company or any of its Subsidiaries) or has any liability for Taxes of any Person (other than the Company or entered into any Subsidiary) arising from the application of Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, or as a closing agreementtransferee or successor, private letter ruling, advance tax ruling by contract or similar agreement with any Governmental Authority with respect to Taxes. otherwise.
(e) Neither the Company nor any of its Subsidiaries is a party to or is otherwise bound by any material Tax sharing, allocation or indemnification agreement or arrangement, other than (i) an agreement or arrangement the parties to which are solely the Company and/or one or more of its Subsidiaries, and (ii) any customary Tax indemnifications contained in credit or other commercial agreements the primary purpose of which agreements does not relate to Taxes.
(f) Within the past two (2) years, neither the Company nor any of its Subsidiaries has made been a change “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of any method of accounting with respect to any Taxesthe Code.
(g) Neither the Company nor any of its Subsidiaries is a party to has engaged in any Tax indemnification “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to TaxesTreasury Regulations Section 301.6111-2(b).
(h) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from taxable income for any taxable Tax period as a result of (i) is liable for Taxes of an installment sale or “open transaction” disposition before the Closing; (ii) any other Person prepaid amounts received or deferred revenue accrued prior to the Closing; (other than the Company and its Subsidiariesiii) under Treasury Regulation Section 1.1502-6 any intercompany transactions or any excess loss account described in the Treasury Regulations under Section 1502 of the Code that occurred or arose prior to the Closing; (iv) any “closing agreement” as described in Section 7121 of the Code executed prior to the Closing; (v) adjustments under Section 481 of the Code relating to any change of accounting prior to the Closing, or, in the case of each of the foregoing, any corresponding or similar provision of state, local local, or foreign non-U.S. Law; (vi) the recapture of any Tax Law credit or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in special Tax benefit that arose prior to the ordinary course of business) not primarily related to Taxes) Closing; or (iivii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income any Transition Tax purposes, other than a group Obligation that accrued prior to the common parent of which was or is the Company or any of its SubsidiariesClosing.
(i) Within the past three (3) years, no written claim has been made by Subject to any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior changes to the Share Exchange Closing will not be, treated as an “investment company” within method or structure of effecting the meaning of Merger pursuant to Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby1.7, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the has knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, circumstances that could reasonably be expected to prevent or impede the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Taxes. (a) All material The affiliated group (within the meaning of Section 1504(a) of the Code) of TreeCon has timely filed all federal, state and other Tax Returns returns required to be have been filed by it or with respect to them for each taxable period during which the Company or any of Borrower and its Subsidiaries have been timely filed (taking into account any applicable extensions), were members of the affiliated group; all such Tax Returns (taking into account all amendments thereto) are true, returns were correct and complete in all material respects, and ; all material income or other Taxes due and payable owed by such affiliated group (whether or not shown on any the Tax Returnreturns) have been paidpaid for each taxable period during which the Borrower and its Subsidiaries were members of the affiliated group; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(b) The Company Borrower and each of its Subsidiaries have withheld from and paid all Taxes required to be withheld and paid by it or them in connection with amounts paid or owing to any employeeemployees, creditor creditors, stockholders or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird parties.
(c) There are no Liens for Taxes Except as set forth in Schedule 3.19, (other than Permitted Liensi) upon the property or assets none of the Company Borrower, TreeCon or any of its their respective Subsidiaries has been advised that any Tax returns have been or are being audited by any Governmental Authority, (ii) there are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment of any Taxes or deficiency against the Borrower, TreeCon or any of their respective Subsidiaries, (iii) there are no actions, suits, proceedings or claims now pending by or against the Borrower, TreeCon or any of their respective Subsidiaries in respect of any Taxes or assessments, and (iv) there is no pending or, to the best knowledge of the Borrower Parties, threatened audit or investigation of the Borrower, TreeCon or any of their respective Subsidiaries by any Governmental Authority relating to any Taxes or assessments, or any claims for additional Taxes or assessments asserted by any Governmental Authority; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(d) No claimExcept as may be required or permitted under the Code with respect to the filing of consolidated Tax returns and as may be provided in Section 9.4, assessmentnone of the Borrower, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company TreeCon or any of its their respective Subsidiaries is a party to or bound by any Tax sharing, Tax indemnity or Tax allocation agreement or other similar arrangement; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that remains unresolved or unpaidsuch representation is required to be true, such representation is made to the knowledge of Borrower.
(e) There is no material Tax audit or other examination Pursuant to Section 355(c) of the Company or any Code, TreeCon will recognize no gain in connection with the distribution of its Subsidiaries presently the shares of Common Stock by TreeCon in progress connection with the Spin-Off; provided, that, with respect to any material TaxesTreeCon, nor has for all times after the Company or any Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesBorrower.
(f) Neither TreeCon did not distribute any property in the Company nor any Spin-Off other than qualified property within the meaning of its Subsidiaries has made a request for or entered into a closing agreementSection 355(c)(2)(B) of the Code; provided, private letter rulingthat, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither TreeCon, for all times after the Company nor any Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of its Subsidiaries has made a change of any method of accounting with respect to any TaxesBorrower.
(g) Neither None of the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into Common Stock distributed by TreeCon in the ordinary course Spin-Off will be treated as other property pursuant to Section 355(a)(3)(B) of businessthe Code, and the Common Stock does not constitute non-qualified preferred stock as defined in Section 351(g)(2) not primarily related of the Code; provided, that, with respect to Taxes)TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of Borrower.
(h) Neither None of the Company nor any Common Stock distributed by TreeCon in the Spin-Off will be distributed in a disqualified distribution within the meaning of its Subsidiaries Section 355(d)(2) of the Code (iprovided, however, that the Borrower shall not be deemed to have breached this clause (h) if TreeCon is liable for Taxes deemed after the Spin-Off to have distributed shares of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateCommon Stock in a disqualified distribution and, local or foreign Tax Law or as a transferee result thereof, the Borrower does not incur losses, claims, damages, obligations, liabilities, judgments, costs or successor or by Contract (other than customary commercial Contracts (or Contracts entered into expenses in excess of $250,000 in the ordinary course aggregate); provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made to the knowledge of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesBorrower.
(i) Within There is no plan or arrangement within the past three meaning of Section 355(e) of the Code pursuant to which one or more persons will acquire stock representing a fifty percent (350%) yearsor greater interest in either TreeCon or the Borrower; provided, no written claim has been that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is required to be true, such representation is made by any Governmental Authority where to the Company or any knowledge of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionBorrower.
(j) Neither There is no excess loss account with respect to the Company nor Stock of the Borrower or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)Subsidiary.
(k) The Company has not beenFor two years preceding the Spin-Off Effective Date, no person or persons have acquired an interest in TreeCon that will result in one or more persons acquiring stock representing a 50-percent or greater interest in the Borrower or TreeCon as a result of the Spin-Off; provided, that, with respect to TreeCon, for all times after the Spin-Off Effective Date that such representation is notrequired to be true, and immediately prior such representation is made to the Share Exchange Closing knowledge of Borrower.
(l) Neither the Spin-Off, nor any revisions to compensation arrangements effected in connection with the Spin-Off, will not be, treated result in any liability of the Borrower (including any liability for an indemnity pursuant to any employment arrangement) as an “investment company” within a result of the meaning application of Section 368(a)(2)(F280G or any disallowance of the deduction of any compensation expense as a result of the application of Section 162(m) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Loan and Security Agreement (Overhill Farms Inc), Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp)
Taxes. (ai) All material Tax Except for late filings that may have resulted in immaterial late filing fees, each of the Company and its subsidiaries has timely filed all Returns required to be filed by it with any Governmental Authority on or with respect to before the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company date and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over Return was complete and complied correct in all material respects at the time of filing. Each of the Company and its subsidiaries has paid or caused to be paid to the appropriate Governmental Authority on a timely basis all Taxes which are due and payable, other than those which are being or have been contested in good faith by appropriate proceedings pursuant to applicable Laws, and in respect of which, in the reasonable opinion of the Company, adequate reserves or accruals in accordance with all applicable withholding and related reporting requirements IFRS have been provided in the Company Financial Statements. No audit, action, investigation, deficiencies, litigation or proposed adjustments have been asserted or, to the knowledge of the Company, threatened with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither subsidiaries, and neither the Company nor any of its Subsidiaries subsidiaries is a party to any action or proceeding for assessment or collection of Taxes and no such event has made a request for been asserted or, to the knowledge of the Company, threatened. To the knowledge of the Company, no Return of the Company or entered into a closing agreementany of its subsidiaries is under investigation, private letter rulingreview, advance tax ruling audit or similar agreement with examination by any Governmental Authority with respect to any Taxes, and no written notice of any investigation, review, audit or examination by any Governmental Authority has been received by the Company or any of its subsidiaries with respect to any Taxes. No Lien for Taxes has been filed or exists with respect to any assets or properties of the Company or any of its subsidiaries other than for Taxes not yet due and payable or Liens for Taxes that are being contested in good faith by appropriate proceedings pursuant to applicable Laws. There are no currently effective elections, agreements or waivers extending the statutory period or providing for an extension of time with respect to the assessment or reassessment of any Taxes, the filing of any Return or any payment of Taxes by the Company or its subsidiaries. Neither the Company nor any of its Subsidiaries subsidiaries has made made, prepared and/or filed any elections, designations or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Taxes or Returns that could, in and of itself, require a change material amount to be included in the income of the Company or any method of accounting with respect to its subsidiaries for any Taxesperiod ending after the Effective Date.
(gii) Neither All Taxes that the Company nor or any of its Subsidiaries subsidiaries has been required to withhold have been duly withheld and have been duly and timely paid to the appropriate Governmental Authority. Each of the Company and its subsidiaries has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes, payroll taxes and other Taxes payable by it in respect of its employees, agents and consultants, as applicable, and has remitted such amounts to the appropriate Governmental Authority within the time required under applicable Laws. Each of the Company and its subsidiaries has, to the extent required under applicable Laws, duly charged, collected and remitted on a timely basis all Taxes on any sale, supply or delivery whatsoever, made by them.
(iii) There are no rulings or closing agreements relating to the Company or any of its subsidiaries which may affect the Company's or any of its subsidiaries' liability for Taxes for any taxable period commencing after the Effective Date.
(iv) For any transactions between the Company and any person who is not resident in Canada for purposes of the Tax Act with whom the Company was not dealing at arm's length for purposes of the Tax Act, the Company has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act (or equivalent provisions of any other applicable legislation).
(v) None of the Company or any of its subsidiaries has received any COVID-19 Subsidy amounts to which it was not entitled. None of the Company or any of its subsidiaries has deferred any payroll tax obligations as permitted under applicable COVID-19 related measures enacted, promulgated or offered as an administrative relief by a Governmental Authority.
(vi) No circumstances exist or may reasonably be expected to arise as a result of matters existing before the Effective Date that may result in the Company or any of its subsidiaries being subject to the application of Section 160 of the Tax Act (or equivalent provisions of any other applicable legislation).
(vii) None of Sections 78, 79 or 80 to 80.04 of the Tax Act (or equivalent provisions of any other applicable legislation) have applied to the Company or any of its subsidiaries, and there are no circumstances existing which could reasonably be expected to result in the application of Sections 78, 79 or 80 to 80.04 of the Tax Act (or equivalent provisions of any other applicable legislation) to the Company or any of its subsidiaries.
(viii) There are no circumstances which exist and would result in, or which have existed and resulted in, Section 17 of the Tax Act applying to the Company or to any of its subsidiaries.
(ix) None of the Company or any of its subsidiaries is a party to any Tax indemnification agreement, understanding or Tax arrangement relating to the allocation or sharing or similar Tax agreement of Taxes (other than any such agreement solely between the Company and its existing Subsidiaries and excluding customary commercial Contracts (or Contracts agreements entered into in the ordinary course of business) business the primary subject of which is not primarily related to Taxes).
(hx) Neither For the purposes of the Tax Act, any applicable Tax treaty and any other relevant Tax purpose: (i) the Company nor is resident in, and is not a non-resident of, Canada, and is a "taxable Canadian corporation"; and (ii) each of its subsidiaries is resident in the jurisdiction in which it was formed, is not a resident in any other country, and if resident in Canada and is a corporation, is a "taxable Canadian corporation".
(xi) The Company Shares are listed on a "recognized stock exchange" (as defined in the Tax Act) and are therefore "excluded property" for purposes of section 116 of the Tax Act.
(xii) None of the Company or any of its Subsidiaries (i) is liable for Taxes of subsidiaries has any other Person (other than the Company and its Subsidiaries) liability under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law non-U.S. Law), or liability as a transferee or successor or transferee, by Contract (contract or otherwise, for Taxes of any person other than the Company or its subsidiaries, excluding any agreement or arrangement where the inclusion of a Tax indemnification or allocation provision is customary commercial Contracts (or Contracts entered into in incidental to an agreement the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent primary nature of which was is not Tax sharing or is indemnification.
(xiii) None of the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries subsidiaries has participated in a “"listed transaction” " within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2).
(kxiv) The None of the Company or any of its subsidiaries is or has not been, is not, been a party to any "reportable transaction" as defined in Section 6707A(c)(1) of the Code and immediately prior U.S. Treasury Regulation Section 1.6011-4(b).
(xv) None of the Company or any of its subsidiaries has made an election pursuant to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F897(i) of the Code.
(lxvi) Except as contemplated by this Agreement and During the Transactions contemplated herebylast two years, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge none of the Company or any of its Subsidiaries subsidiaries has been a party to any transaction (other than a transaction described in Section 355(e)(2)(C) of the Code) treated by the parties thereto as one to which Section 355 of the Code (or any similar provision of state, local or non-U.S. Law) applied.
(xvii) Neither the Company or its subsidiaries are there or even have been: (i) a "surrogate foreign corporation" within the meaning of Section 7874(a)(2)(B) of the Code; or (ii) treated as a "domestic corporation" under Section 7874(b) of the Code.
(xviii) None of the Company or any facts of its subsidiaries is currently or circumstanceshas been at any time in the past five years a "controlled foreign corporation" within the meaning of Section 957(a) of the Code.
(xix) Each of Millennial NV LLC, that could reasonably be expected to prevent the Transactions from qualifying Millennial Red Canyon LLC, Millennial Arizona LLC and Millennial Development LLC are "disregarded entities" under U.S. Treasury Regulation Section 301.7701-2(a) for the Intended federal and state income Tax Treatmentpurposes.
Appears in 2 contracts
Sources: Arrangement Agreement (Integra Resources Corp.), Arrangement Agreement (Integra Resources Corp.)
Taxes. (a) All material Except for matters that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all Tax Returns required to be filed by by, on behalf of or with respect to the Company or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) and are true, complete and correct and complete in all material respects, and (ii) all material Taxes due and payable (whether or not shown reflected on such Tax Returns) required to be paid by the Company or any Tax Return) of its Subsidiaries have been duly and timely paid.
, (biii) The the Company and each of its Subsidiaries have withheld from amounts owing to any employeeadequate accruals and reserves, creditor or other Person in accordance with GAAP, on the financial statements included in the Company SEC Documents for all material Taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements, (iv) all Taxes required by applicable Law to be withheld by the Company or any of its Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid over to the proper Governmental Taxing Authority or properly set aside in a timely manner all accounts for such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements purpose, (v) no Taxes with respect to such Taxes.
the Company or any of its Subsidiaries are under audit or examination by any Taxing Authority, (cvi) There no Taxing Authority has asserted in writing any deficiency with respect to Taxes against the Company or any of its Subsidiaries with respect to any taxable period for which the period of assessment or collection remains open (vii) there are no Liens for Taxes (other than Permitted Liens) upon on any of the property or assets of the Company or any of its SubsidiariesSubsidiaries other than Permitted Liens and (viii) no claim has been made in writing by a tax authority of a jurisdiction where the Company or one of its Subsidiaries has not filed Tax Returns claiming that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction that has not been resolved.
(db) No claimDuring the two (2) year period ending on the date of this Agreement, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither neither the Company nor any of its Subsidiaries has made was a request for distributing corporation or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect controlled corporation in a transaction intended to Taxes. Neither be governed by Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode.
(gc) Neither Except for matters that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is a party to any Tax indemnification agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of Taxes, except for any such agreement agreements that (i) are solely between the Company and and/or any of its existing Subsidiaries and customary commercial Contracts Subsidiaries, (ii) will terminate as of, or Contracts prior to, the Closing or (iii) are entered into in the ordinary course of business) , the principal purpose of which is not primarily related to the allocation or sharing of Taxes).
(hd) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes or has been during the past three (3) years a member of any other affiliated, consolidated, combined or unitary group (that includes any Person (other than the Company and its Subsidiaries) under for purposes of filing Tax Returns on net income, other than any such group of which the Company was the common parent, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or (ii)(A) has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Regulations Section 1.1502-6 or any similar analogous provision of state, local or foreign Tax Law or Law, as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (iiB) has ever been waived any statute of limitations with respect to U.S. federal income or U.S. state income Taxes or agreed to any extension of time with respect to a member of an affiliated, consolidated, combined U.S. federal income or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was assessment or is the Company or any of its Subsidiariesdeficiency.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(je) Neither the Company nor any of its Subsidiaries that is required to file a U.S. federal income Tax Return has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2)4(c) within the last five (5) years.
(kf) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” been a United States real property holding corporation within the meaning of Section 368(a)(2)(F897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(lg) Except as contemplated by this Agreement and would not reasonably be expected to have, individually or in the Transactions contemplated herebyaggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has taken will be required to include any action item of income in, or agreed exclude any item of deduction from, taxable income for a taxable period ending after the Closing Date as a result of any (i) adjustment pursuant to take Section 481 of the Code (or any actionanalogous provision of state, nor local or foreign Law) for a taxable period ending on or before the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any analogous provision of state, local or foreign Law) executed on or prior to the knowledge of Closing Date, (iii) installment sale, intercompany transaction or open transaction disposition made on or prior to the Company Closing Date, or any of its Subsidiaries are there any facts (iv) prepaid amount received on or circumstances, that could reasonably be expected prior to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nexstar Media Group, Inc.), Agreement and Plan of Merger (Tribune Media Co)
Taxes. (a) All material Each of the Company and each of its Subsidiaries has duly and timely filed (or has had duly and timely filed on its behalf) all Tax Returns required to be filed by it, and all such Tax Returns are to the Knowledge of the Company true, complete and correct. Each of the Company and each of its Subsidiaries has paid (or has had paid on its behalf) all Taxes due and owing by them and the most recent financial statements contained in the Company's SEC Documents reflect adequate reserves in accordance with generally accepted accounting principles for all Taxes payable by the Company or its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements.
(b) Each of the Company and each of its Subsidiaries has complied with all applicable Laws relating to the payment and withholding of Taxes (including, without limitation, the withholding of Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any applicable foreign Laws) and have, within the time and in the manner prescribed by applicable Laws, withheld from employee wages and paid over to the proper Governmental Entity all amounts required to be so withheld and paid over under all applicable Laws.
(c) Except as set forth on Schedule 3.11(c) of the Disclosure Schedule, (i) no deficiencies for any Taxes have been threatened, proposed, asserted or assessed (either in writing or orally) against the Company or any of its Subsidiaries, (ii) no Governmental Entity is conducting or proposing to conduct an audit with respect to Taxes or any Tax Returns of the Company or any of its Subsidiaries, (iii) no extension or waiver of the statute of limitations with respect to Taxes or any Tax Return has been granted by the Company or any of its Subsidiaries, which remains in effect, (iv) neither the Company nor any of its Subsidiaries is a party to any agreement or arrangement to allocate, share or indemnify another party for Taxes, (v) there are no Liens for Taxes upon the assets of the Company or any of its Subsidiaries, except for Liens for Taxes not yet due, (vi) all Tax deficiencies which have been claimed, proposed or asserted against the Company or any of its Subsidiaries have been fully paid or finally settled, and no issue has been raised in any examination by the Taxing Authority, which by application of similar principles, could be expected to result in the proposal or assertion of a Tax deficiency against the Company or any of its Subsidiaries for another year not so examined, (vii) the Company has filed, as a common parent corporation of an affiliated group (within the meaning of Section 1504(a) of the Code) a consolidated return for federal income tax purposes on behalf of such affiliated group and (viii) no power of attorney has been granted by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such any matter relating to Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount Schedule 3.11(d) of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination Disclosure Schedule sets forth the taxable years of the Company or any of its Subsidiaries presently in progress as to which the respective statutes of limitations with respect to any material TaxesTaxes have not expired and, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) taxable years, no written claim has those years for which examinations have been made by any Governmental Authority where the Company or any of its Subsidiaries does completed, those years for which examinations are presently being conducted, those years for which examinations have not file Tax been initiated and those years for which required Returns that it is or may be subject to taxation in that jurisdictionhave not yet been filed.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Bosch Security Systems Corp), Merger Agreement (Detection Systems Inc)
Taxes. (a) All Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) The Company and each of its Subsidiaries (A) have prepared (or cause to be prepared) and timely filed all income and other material Tax Returns required to be filed by it (taking into account applicable extensions to file such Tax Returns) and all such Tax Returns are true, complete and accurate in all respects; (B) have paid all Taxes required to be paid by it (whether or not shown as due and owing on any Tax Return); (C) have complied in all respects with all applicable Laws relating to the withholding and payment of Taxes, and has withheld all Taxes required to be withheld by it and timely paid such Taxes to the appropriate Governmental Entity; and (D) have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, in each case that remains in effect.
(ii) All Taxes of the Company or and its Subsidiaries that are not yet due and payable have been properly reserved for in the Company’s financial statements.
(iii) Neither the Company nor any of its Subsidiaries have been timely filed (taking into account waived any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete statute of limitations in all material respects, and all material respect of Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing agreed to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements extension of time with respect to such Taxes.
(c) There are no Liens for a Tax assessment or deficiency, other than, in each case, with respect to routine extensions to file Tax Returns. No closing agreement, private letter ruling, technical advice memoranda or similar agreements or ruling with respect to Taxes (other than Permitted Liens) upon the property has been requested of any Governmental Entity by or assets on behalf of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(eiv) There is are no material Tax audit pending or, to the Knowledge of the Company, threatened audits, examinations, investigations or other examination of the Company or any of its Subsidiaries presently in progress proceedings with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries. There are no claims or assessments by any Governmental Entity with respect to any Taxes of the Company or any of its Subsidiaries that have not been fully paid or finally settled.
(fv) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with have been notified by any Governmental Authority with respect Entity in a jurisdiction in which the Company or such Subsidiary does not file a Tax Return that the Company or such Subsidiary is or may be subject to TaxesTax by such jurisdiction.
(vi) Neither the Company nor any of its Subsidiaries have been a member of an “affiliated group” (within the meaning of Section 1504(a) of the Code) filing a consolidated, joint, unitary or combined federal income Tax Return or any similar group for federal, state, local or foreign Tax purposes (other than a group the common parent of which is the Company). Neither the Company nor any of its Subsidiaries has made a change have any liability for the Taxes of any method Person (other than the Company or any of accounting its current or former Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor or by contract (other than any contract entered into in the ordinary course of business that is a commercial or employment agreement no principal purpose of which relates to Taxes).
(vii) None of the assets or properties of the Company or any of its Subsidiaries are subject to any Lien for Taxes, other than any Lien for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which appropriate reserves have been recorded in the Company’s financial statements.
(b) There are no material Tax sharing agreements, Tax allocation agreements or similar arrangements (including Tax indemnity arrangements) with respect to or involving the Company or its Subsidiaries (other than any agreement or arrangement not principally related to Taxes).
(gc) Neither the Company nor any of its Subsidiaries is have been a party “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution intended to any Tax indemnification or Tax sharing or similar Tax agreement qualify under Section 355(a) of the Code within the past five (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business5) not primarily related to Taxes)years.
(hd) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes are aware of any other Person facts, or has knowingly taken or agreed to take or refrain from taking any action, in each case, that would reasonably be expected to prevent or impede the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(other than e) Neither the Company and nor any of its SubsidiariesSubsidiaries have participated in a “reportable transaction” (within the meaning of Treasury Regulations Section 1.6011-4(b) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for non-U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Law).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Roku, Inc), Agreement and Plan of Merger (Fox Corp)
Taxes. Except as set forth in Section 2.11 of the Disclosure Schedule:
(a) All material the Company and its Subsidiaries have (A) duly filed (or there have been filed on their behalf) with the appropriate governmental authorities all Tax Returns (as defined in Section 9.3) required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all them and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, except where any such failure to file, or failure to be true, correct and complete, would not, individually or in the aggregate, have a Material Adverse Effect, and (B) duly paid in full all material Taxes shown to be due and payable (whether or not shown on any such Tax Return) have been paid.Returns;
(b) The the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable laws, rules and regulations relating to the withholding of Taxes and related reporting requirements with respect the payment of such withheld Taxes to the proper governmental authorities, except where any such Taxes.failure to comply, withhold or pay over would not, individually or in the aggregate, have a Material Adverse Effect;
(c) There all federal income Tax Returns of the Company and its Subsidiaries have been audited, and no federal or material state, local or foreign audits or other administrative proceedings or court proceedings are no Liens for presently being conducted with regard to any Taxes (other than Permitted Liens) upon the property or assets Tax Returns of the Company or its Subsidiaries and neither the Company nor its Subsidiaries has received a written notice of any pending audits with respect to material Taxes or material Tax Returns of the Company, and neither the Company nor any of its Subsidiaries.Subsidiaries has waived in writing any statute of limitations with respect to material Taxes;
(d) No claim, assessment, deficiency neither the Internal Revenue Service nor any other taxing authority (whether domestic or proposed adjustment for any material amount of Tax foreign) has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved any deficiency or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material claim for Taxes, nor has the Company except where any such deficiency or any of its Subsidiaries been notified in writing of any request or threat claim for such an audit or other examinationTaxes, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect if decided adversely to any material Taxes of the Company or any of its Subsidiaries., would not, individually or in the aggregate, have a Material Adverse Effect;
(e) There are no material 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 and liens for Taxes that are being contested in good faith by appropriate proceedings, and no material written power of attorney that has been granted by the Company or its Subsidiaries (other than to the Company or a Subsidiary) currently is in force with respect to any matter relating to Taxes;
(f) Neither the Company nor any of its Subsidiaries has made has, with regard to any assets or property held or acquired by any of them, agreed to have Section 341(f)(2) of the Code apply to any disposition of a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither subsection (f) asset (as such term is defined in Section 341(f)(4) of the Code) owned by the Company nor or any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.Subsidiaries; and
(g) Neither Since June 14, 1995, none of the Company nor any of or its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group Affiliated Group filing for U.S. federal, state or local a consolidated federal income Tax purposes, tax return other than a group the common parent of which was or is the Company or any of its SubsidiariesCompany.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Fred Meyer Inc), Merger Agreement (Food 4 Less Holdings Inc /De/)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company Docent and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person timely filed all material Returns relating to Taxes required by applicable Law to be withheldfiled by Docent and each of its Subsidiaries with any Tax authority. Docent and each of its Subsidiaries have paid all Taxes shown to be due on such Returns.
(b) Docent and each of its Subsidiaries as of the Effective Time will have withheld or paid, paid over to as the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements case may be, with respect to such Taxesits employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld or paid.
(c) There are no Liens Neither Docent nor any of its Subsidiaries is delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Docent or any of its Subsidiaries, nor has Docent or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(d) No audit or other examination of any Return of Docent or any of its Subsidiaries by any Tax authority is presently in progress, nor has Docent or any of its Subsidiaries been notified of any request for such an audit or other examination.
(e) No adjustment relating to any Returns filed by Docent or any of its Subsidiaries has been proposed in writing formally or informally by any Tax authority to Docent or any of its Subsidiaries or any representative thereof.
(f) Neither Docent nor any of its Subsidiaries has any liability for any material unpaid Taxes (which has not been accrued for or reserved on Docent Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Docent, other than Permitted Liens) upon any liability for unpaid Taxes that may have accrued since December 31, 2002 in connection with the property or assets operation of the Company business of Docent and its Subsidiaries in the ordinary course.
(g) There is no contract, agreement, plan or arrangement to which Docent or any of its Subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Docent or any of its Subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Docent is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(h) Neither Docent nor any of its Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Docent or any of its Subsidiaries.
(di) No claim, assessment, deficiency Docent has made available to Click2learn or proposed adjustment for its legal counsel or accountants copies of all Tax Returns of Docent and any material amount of Tax has been asserted in writing or assessed its Subsidiaries requested by any Governmental Authority against Click2learn.
(j) There are (and immediately following the Company Effective Time there will be) no Liens on the assets of Docent or any of its Subsidiaries that remains unresolved relating to or unpaid.
(e) attributable to Taxes other than Liens for Taxes not yet due and payable. There is no material Tax audit or other examination of basis for the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing assertion of any request claim relating or threat attributable to Taxes that, if adversely determined, would result in any Lien for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions Taxes on the assets of any statute of limitations currently in effect with respect to any material Taxes of the Company Docent or any of its Subsidiaries.
(fk) Neither Docent nor any of its Subsidiaries is or has been at any time, a “United States Real Property Holding Corporation” within the Company meaning of Section 897(c)(2) of the Code.
(l) Neither Docent nor any of its Subsidiaries has made within the past five years (a) been a request for or entered into member of an affiliated group (within the meaning of Code §1504(a)) filing a closing agreementconsolidated federal income Tax Return (other than a group the common parent of which was Docent), private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(gb) Neither the Company nor any of its Subsidiaries is been a party to any Tax sharing, indemnification or Tax sharing allocation agreement, nor does Docent or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries owe any amount under any such agreement (ic) is liable liability for the Taxes of any other Person person (other than the Company and Docent or any of its Subsidiaries) under Treasury Regulation Section Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign Tax Law or law), as a transferee or successor successor, by contract, or by Contract otherwise and (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessd) not primarily related to Taxes) or (ii) has ever been a member of an affiliatedparty to any joint venture, consolidated, combined partnership or unitary group filing other agreement that could be treated as a partnership for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jm) Neither the Company Docent nor any of its Subsidiaries has participated 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.
(n) Neither Docent nor any of its Subsidiaries has engaged in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction” within the meaning of Treasury Regulation , as set forth in Treas. Reg. § 1.6011-4(b)(2).
(ko) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” None of Docent’s or its Subsidiaries’ assets are tax exempt use property within the meaning of Section 368(a)(2)(F168(h) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Docent Inc), Agreement and Plan of Reorganization (Click2learn Inc/De/)
Taxes. (a) All Each of the Company and the Company Subsidiaries has filed, or caused to be filed, all material Tax Returns that it was required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any file under applicable extensions)laws and regulations, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, . The Company and the Company Subsidiaries has timely paid (or there has been timely paid with respect to it) all material Taxes due and payable (whether or not shown on any Tax Returnthereon) have been paid.
(b) The Company due and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) owing. There are no Liens for Taxes (other than Permitted LiensTaxes not yet delinquent or being contested in good faith and for which reserves in accordance with GAAP have been established on the Company Financial Reports as adjusted in the ordinary course of business through the Effective Time) upon the property or any assets of the Company or any of its the Company Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(eb) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesaudit, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions investigation dispute or written requests for any waivers or extensions of any statute of limitations currently in effect with respect claim relating to any material Taxes of the Company or any of its Subsidiariesthe Company Subsidiaries which remains unpaid or unresolved.
(fc) Neither the Company nor any of its the Company Subsidiaries has made a request for waived any statutes of limitations in respect of material Taxes which waiver remains in effect or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with agreed to any Governmental Authority extension of time with respect to Taxesa material Tax assessment or deficiency which assessment or deficiency has not been paid.
(d) Except as set forth in Section 4.15(d) of the Disclosure Schedule, the Transactions (including the Merger) will not result in the payment or series of payments by the Company or any of the Company Subsidiaries to any person of an “excess parachute payment” within the meaning of Section 280G of the Code, or any similar payment, that is not deductible for federal, state, local or foreign Tax purposes. Neither Additionally, there is no contract to which the Company or any of the Company Subsidiaries is a party that, individually or collectively, (i) could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) or Section 280G of the Code, or (ii) could require the Company, the Company Subsidiaries or Parent or its subsidiaries to gross up a payment to any employee of the Company or any of the Company Subsidiaries for Tax related payments or cause a penalty tax under Section 4999 or Section 409A of the Code.
(e) None of the Company or the Company Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return (other than Tax Returns for which the Company is currently the common parent) provided for under the laws of the U.S., any foreign jurisdiction or any state or locality with respect to Taxes for any taxable year and neither Company nor any Company Subsidiary has any obligation to contribute to the payment of its any material Tax of any person other than the Company or a Company Subsidiary under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as transferee or successor.
(f) None of the Company or any of the Company Subsidiaries has made constituted either a change “distributing corporation” or a “controlled corporation” within the meaning of any method Section 355(a)(1)(A) of accounting the Code in a distribution of stock qualifying under Section 355 of the Code in the two years prior to the date of this Agreement (or will constitute such a corporation in the two years prior to the Effective Time) or that otherwise constitutes part of a “plan” or “series of related transactions” within the meaning of Section 355(e) of the Code in conjunction with respect to any Taxesthe Merger.
(g) Neither None of the Company nor any of its Subsidiaries Company Subsidiary is a party to or bound by any Tax indemnification or Tax allocation, sharing or similar Tax indemnity agreement (for the avoidance of doubt, excluding indemnification provisions for Taxes contained in credit agreements, leases or other than any such agreement solely between commercial agreements the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course primary purposes of business) which do not primarily related relate to Taxes).
(h) Neither the Company nor any Company Subsidiary will be required to include amounts in income, or exclude items of its Subsidiaries (i) is liable for Taxes of any other Person (other than deduction, in a taxable period beginning after the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateMerger Closing Date, local or foreign Tax Law or as a transferee result of (1) a change in method of accounting occurring prior to the Merger Closing Date, (2) an installment sale or successor or by Contract (other than customary commercial Contracts open transaction arising in a taxable period (or Contracts entered into in portion thereof) ending on or before the ordinary course of businessMerger Closing Date, (3) not primarily related a prepaid amount received, or paid, prior to Taxesthe Merger Closing Date, (4) deferred gains arising prior to the Merger Closing Date or (ii5) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiarieselection under Section 108(i).
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated engaged in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of defined in Section 368(a)(2)(F6707A(c)(2) of the CodeCode and Treasury Regulation Section 1.6011-4(b).
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Peregrine Semiconductor Corp), Merger Agreement (Peregrine Semiconductor Corp)
Taxes. (a) All income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all . All material Taxes due and payable (whether or not shown on any Tax Return) have been fully and timely paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there . There are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law Law, or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) Neither the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(l) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing Acquisition Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(ln) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions from qualifying for prevent, impair or impede the Intended Tax Treatment.
Appears in 2 contracts
Sources: Business Combination Agreement (Bridgetown Holdings LTD), Business Combination Agreement (Bridgetown Holdings LTD)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries Purchaser and each Purchaser Subsidiary have been duly and timely filed as required by applicable Law (taking into account within any applicable extensions), extension periods) and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all . All material Taxes shown to be due and payable on or before the Closing Date (whether or not shown or required to be shown on any Tax Return) have been paidtimely paid in full.
(b) The Company No Proceeding related to any Liability in respect of Taxes or any Tax Return of Purchaser or any Purchaser Subsidiary by any Governmental Authority is presently pending, nor has Purchaser or any Purchaser Subsidiary received any notice of any request for such an audit or other examination.
(c) Purchaser and each of its the Purchaser Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and each complied in all material respects with all applicable Laws, rules, and regulations relating to the payment and withholding of Taxes and related has duly and timely withheld and has paid over to the appropriate Governmental Authority all amounts required to be so withheld and paid over in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder, or other third party for all periods under all applicable Law, and has complied with all material information reporting requirements with respect to such Taxesand backup withholding provisions of applicable Law.
(cd) There are no material Liens for with respect to Taxes on the assets or business of Purchaser or any Purchaser Subsidiary (other than Permitted Liens) upon on any of the property properties or assets of Purchaser, any Purchaser Subsidiary or the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidPurchaser Shares.
(e) There is no material Tax audit or other examination of the Company or Neither Purchaser nor any of its Subsidiaries presently in progress with respect to any material Taxes, nor Purchaser Subsidiary has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of waived any statute of limitations currently in effect with respect applicable to any material Taxes claim for Taxes, and neither Purchaser nor any Purchaser Subsidiary has requested or been granted an extension of the Company or time for filing any of its SubsidiariesTax Return (other than automatic extensions for income Tax Returns).
(f) Neither Purchaser is not a “foreign person” as defined in Section 1445(f)(3) of the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode.
(g) Neither Purchaser is not and has not been a United States real property holding corporation within the Company nor meaning of Code §897(c)(2) at any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between time during the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into applicable period specified in the ordinary course of business) not primarily related to TaxesCode §897(c)(1)(A)(ii).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateExcept as set forth on Schedule 6.15(h), local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within within the past three (3) years, no written claim neither Purchaser nor any Purchaser Subsidiary has been made ever distributed stock of another Person, or had its stock distributed by any Governmental Authority where another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionCode.
(ji) Neither the Company Purchaser nor any of its Subsidiaries Purchaser Subsidiary has participated in entered into a “listed transaction” within the meaning of Treasury Regulation §1.6011-4(b)(2).
(kj) The Company No written claim has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” been made within the meaning of Section 368(a)(2)(Flast three (3) of the Codeyears by a Governmental Authority in a jurisdiction where Tax Returns with respect to either Purchaser or any Purchaser Subsidiary are not filed asserting that Purchaser or any Purchaser Subsidiary is or may be subject to Tax in that jurisdiction.
(lk) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company Neither Purchaser nor any of its Subsidiaries Purchaser Subsidiary has taken requested or received a ruling from any action Governmental Authority or agreed to take signed a closing or other agreement with any action, nor to Governmental Authority which would result in taxable income for a taxable period after the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentClosing Date.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) timely filed all income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property material federal, state, local or assets foreign audits or examinations of any Tax Return of the Company or its Subsidiaries ongoing or pending and neither the Company nor any Subsidiary has received written notice of its Subsidiaries.
(d) any such material audit or examination. No claim, assessment, deficiency or proposed adjustment claim for any material amount of Tax unpaid Taxes has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesby a Governmental Entity, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between claim that has been resolved prior to the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course date of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written this Agreement. No claim has been made in writing by any a Governmental Authority Entity in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(jc) The Company and each of its Subsidiaries have withheld all material Taxes required to have been withheld, including from payments made to its employees, independent contractors, creditors, stockholders and other third parties and, to the extent required, such Taxes have been paid to the relevant Governmental Entity.
(d) There are no outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or material deficiencies against the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of material Taxes, except for any such agreements that (i) are solely between the Company and/or any of its Subsidiaries, (ii) will terminate as of the Closing, or (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes.
(f) There are no material Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Reports, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith and for which adequate reserves have been established on the Company Balance Sheet.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (A) is or has been in the past five (5) years a member of a group (other than a group the common parent of which is the Company or one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return, or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law, as a transferee or successor, or pursuant to any contractual obligation (other than contracts entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes).
(i) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(j) The U.S. federal income tax entity classification of each Subsidiary of the Company not organized within the United States is set forth on Section 5.13(j) of the Company Disclosure Schedule.
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not beit has never been, treated as an a “investment companyUnited States real property holding corporation” within the meaning of Section 368(a)(2)(F) 897 of the Code.
(l) Except The Company and each of its Subsidiaries (i) have made available to Parent true, correct and complete copies of all written agreements with any Governmental Entity relating to any material Tax exemption, Tax holiday or other Tax reduction agreement or order (“Tax Incentive”), as in effect as of the date hereof, and (ii) are in compliance in all material respects with all terms and conditions of any such Tax Incentive and (iii) the consummation of the transactions contemplated by this Agreement will not have any material adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(m) No private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Governmental Entity with respect to the Transactions contemplated herebyCompany or any of its Subsidiaries for any taxable year for which the statute of limitations has not yet expired.
(n) The Company and each of its Subsidiaries are in material compliance with all applicable Laws relating to transfer pricing, neither including (i) compliance with Section 482 of the Code or a similar provision of any applicable Law and (ii) the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of the Company and its Subsidiaries.
(o) Neither the Company nor any of its Subsidiaries has taken incurred any action material liabilities for Taxes since December 31, 2015, other than in the ordinary course of business or agreed to take in connection with any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenttransaction contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Taxes. (a) All material Except for matters that have not had a Company Material Adverse Effect, (i) all Tax Returns required to be filed by by, on behalf of or with respect to the Company or any of its Subsidiaries have been duly and timely filed and are complete and correct, (taking into account any applicable extensions), ii) all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown reflected on such Tax Returns) required to be paid by the Company or any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employeebeen duly and timely paid, creditor or other Person (iii) all material Taxes required by applicable Law to be withheld by the Company or any of its Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid over to the proper Governmental Taxing Authority or properly set aside in a timely manner all accounts for such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements purpose, (iv) no Tax Returns or Taxes with respect to the Company or any of its Subsidiaries are under audit or examination by, or subject to any litigation with, any Taxing Authority and neither the Company nor any of its Subsidiaries has received a written notice of any such Taxes.
proposed audit or examination, (cv) There the Company and its Subsidiaries have established reserves in accordance with GAAP that are adequate for the payment of all Taxes not yet due and payable by the Company and its Subsidiaries through the date hereof, (vi) no Taxing Authority has asserted in writing any deficiency with respect to Taxes against the Company or any of its Subsidiaries with respect to any taxable period for which the period of assessment or collection remains open and (vii) there are no Liens for Taxes (other than Permitted Liens) upon on any of the property or assets of the Company or any of its SubsidiariesSubsidiaries other than Permitted Liens.
(db) No claimDuring the two-year period ending on the date of this Agreement, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither neither the Company nor any of its Subsidiaries has made was a request for distributing corporation or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect controlled corporation in a transaction intended to Taxes. Neither be governed by Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode.
(gc) Neither Except for matters that have not had a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is a party to any Tax indemnification agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of Taxes, except for any such agreement agreements that (i) are solely between the Company and any of its existing Subsidiaries and customary commercial Contracts Subsidiaries, (ii) will terminate as of, or Contracts prior to, the Closing or (iii) are entered into in the ordinary course of business) , the principal purpose of which is not primarily related to the allocation or sharing of Taxes).
(hd) Except as has not had a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is or has been during the past three years a member of any affiliated, consolidated, combined or unitary group (that includes any Person other than the Company and its Subsidiaries) for purposes of filing Tax Returns on net income, other than any such group of which the Company was the common parent, (ii) neither the Company nor any of its Subsidiaries has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulations Section 1.1502-6 or any analogous provision of national, state, provincial, territorial, municipal, local or foreign Law or as a transferee or successor and (iii) neither the Company nor any of its Subsidiaries has waived any statute of limitations with respect to income Taxes or agreed to any extension of time with respect to any income Tax assessment or deficiency.
(e) Neither the Company nor any of its Subsidiaries (i) that is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as required to file a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local federal income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries Return has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2)4(c) within the last five years.
(kf) The Company has not been, is not, and immediately will not be prior to the Share Exchange Closing will not beClosing, treated as an “investment company” a United States real property holding company within the meaning of Section 368(a)(2)(F897(c) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(lg) Except as contemplated by this Agreement and the Transactions contemplated herebyhas not had a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has taken (i) entered into any action or agreed to take any action, nor to the knowledge “closing agreement” under Section 7121 of the Code, or other agreement (including any advanced pricing agreement) with a Taxing Authority in respect of Taxes that remains in effect or (ii) received any private letter ruling or other written ruling from a Taxing Authority that relates to Taxes of the Company.
(h) Except as has not had a Company or Material Adverse Effect, (i) the Company and each of its Subsidiaries has at all times been exclusively resident for all Tax purposes in its jurisdiction of formation and neither the Company nor any of its Subsidiaries are there has or has had a permanent establishment or otherwise been subject to income Tax jurisdiction in a country other than its country of organization and (ii) no claim has been made in writing by any facts Taxing Authority in any jurisdiction in which the Company or circumstancesa particular Subsidiary does not file Tax Returns with respect to a particular type of Tax that the Company or such Subsidiary, as applicable, is or may be subject to taxation by that could reasonably jurisdiction with respect to such type of Tax.
(i) Neither the Company nor any of its Subsidiaries has deferred material Taxes under Section 2302 of the CARES Act, similar law or executive order of the President of the United States or claimed any material Tax credit under Section 2301 of the CARES Act, similar law or executive order of the President of the United States or Sections 7001-7003 of the Families First Coronavirus Response Act, as may be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentamended.
Appears in 2 contracts
Sources: Merger Agreement (Domtar CORP), Merger Agreement (Resolute Forest Products Inc.)
Taxes. Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(a) All material Each Acquired Company has filed (or has had filed on its behalf) on a timely basis all Tax Returns as required by applicable Laws, except where failure to file a Tax Return does not have, and is not reasonably likely to have, a Company Material Adverse Effect. Each such Tax Return is accurate and complete in all material respects. There are no material Encumbrances for any Taxes on any of the assets of any of the Acquired Companies.
(b) The amounts reflected as Liabilities in the financial statements contained in the Company SEC Documents for all Taxes are adequate in all material respects to cover any and all Liabilities for all Taxes, whether or not disputed, that have been accrued with respect to, should have been accrued with respect to, or are applicable to the period ended on and including the date of such financial statements, or to any years and periods prior thereto and for which any of the Acquired Companies may be directly, indirectly or contingently liable in its own right or as a transferee of the assets of, or successor to, any Person.
(c) No federal, state, local or foreign audits or other Proceedings exist with regard to any material Taxes or Tax Returns of any of the Acquired Companies. None of the Acquired Companies has received any written notice that an audit or other Proceeding is pending or threatened with respect to any Taxes due from or with respect to such company or any Tax Return filed by or with respect to such company. None of the Company Acquired Companies has granted or been requested to grant any waiver of its Subsidiaries have been timely filed (taking into account any statutes of limitations applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such claim for Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claimAll Tax deficiencies that have been claimed, assessment, deficiency proposed or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved the Acquired Companies have been fully paid or unpaidfinally settled. There are no pending Tax examinations as of the date of this Agreement.
(e) There is are no material Tax audit or other examination of the Company or outstanding requests for rulings with any of its Subsidiaries presently in progress Governmental Body with respect to any material Taxes, nor has Taxes that would materially affect the Company or operations of any of its Subsidiaries been notified in writing the Acquired Companies after the Closing Date. None of the Acquired Companies has any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests pending application with any Governmental Body requesting permission for any waivers change in accounting method or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariestax year.
(f) Neither None of the Company nor any of its Subsidiaries Acquired Companies has made filed a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesconsent under Code Section 341(f) concerning collapsible corporations.
(g) Neither None of the Company nor any of its Subsidiaries Acquired Companies is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into has been in the ordinary course past five (5) years a United States real property holding company within the meaning of businessCode Section 897(c)(2) not primarily related to Taxes).
(h) Neither None of the Acquired Companies has in the past three (3) years been a member of an affiliated group (within the meaning of Code Section 1504 or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated Tax Return (other than a group of which the Company is the common parent) nor has any of its Subsidiaries (i) is liable liability for Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesLaw).
(i) Within In the past three (3) yearstwo-year period ending with the Closing Date, none of the Acquiring Companies has distributed the stock of any corporation in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code or has been distributed in such a distribution, and prior to such period, no written claim has been such distribution was made by any Governmental Authority where with the Company plan or any intent of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionfacilitating the Merger.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Chiles Offshore Inc/New/), Merger Agreement (Ensco International Inc)
Taxes. (a) All Each of the Company and its Subsidiaries has duly and timely filed all material Tax Returns required to be filed by it, each of the Company and its Subsidiaries has duly paid or made adequate provision in accordance with respect GAAP in the Balance Sheet for the payment of all material Taxes which have become due as of the date thereof, and have withheld from their employees all material Taxes required to have been withheld and have paid over all such material Taxes to the proper governmental authority, and all such filed Tax Returns are accurate and complete in all material respects. There are no disputes pending or, to the knowledge of the Company, threatened, related to, or claims asserted for, material Taxes or assessments upon the Company or any of its Subsidiaries have been timely filed (taking into account for which the Company or any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries does not have withheld from amounts owing specific and adequate contingency reserves to any employee, creditor or other Person all material Taxes the extent required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) GAAP. There are no Liens material liens for Taxes (other than Permitted Liens) upon the any property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment other than liens for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries Taxes that remains unresolved or unpaid.
(e) are not delinquent. There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions outstanding agreements or written requests for any waivers or extensions extending the statutory period of any statute of limitations currently in effect with respect limitation applicable to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither Subsidiaries for any period. No claim has ever been made by any taxing authority in any jurisdiction where the Company nor or any of its Subsidiaries has made a request for currently does not file Tax Returns that the Company or entered into a closing agreement, private letter ruling, advance tax ruling any of its Subsidiaries is or similar agreement with any Governmental Authority with respect may be subject to Taxesmaterial Tax in such jurisdiction. Neither the Company nor any of its Subsidiaries has made been a change “distributing corporation” or a “controlled corporation” in a material distribution intended to qualify under Section 355(a) of any method of accounting with respect to any Taxes.
(g) the Code. Neither the Company nor any of its Subsidiaries is a party to any Tax sharing, allocation or indemnification agreement or Tax sharing or similar Tax agreement (arrangement, other than any such agreement solely between customary agreements with customers, vendors, lessors or the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts like entered into in the ordinary course of business) not primarily related to Taxes).
(h) . Neither the Company nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary Tax Return (iother than the affiliated group of which the Company is the common parent or of which such Subsidiary was the common parent) is liable or has any material liability for the Taxes of any other Person person (other than the Company and or its Subsidiaries) under Treasury Regulation Section § 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) law). Neither the Company nor any of its Subsidiaries has participated in engaged in, or is a party to, any “listed reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) The Company 4 that has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of been reported in accordance with Treasury Regulation Section 368(a)(2)(F) of the Code1.6011-4.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Herbst Gaming Inc), Merger Agreement (Sands Regent)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed (taking into account all applicable extensions) all federal income and all other material U.S. federal, state, local and non-U.S. Tax Returns required to be filed by relating to any and all Taxes concerning or with respect attributable to the Company or Company, any of its Subsidiaries have been timely filed (taking into account any applicable extensions)or their respective operations, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects are true and correct and have been completed in accordance with Applicable Law.
(b) Each of the Company and its Subsidiaries has (i) timely paid all material Taxes due and payable it is required to pay (whether or not shown on any a Tax Return), and (ii) have been paid.
timely paid or withheld (band timely paid over any withheld amounts to the appropriate Taxing authority) The Company all federal and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material state, local and non-U.S. income Taxes, Federal Insurance Contribution Act and Federal Unemployment Tax Act amounts, and other Taxes (including all Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such reported and withheld amounts on any U.S or non-U.S. Company Equity Awards) required to have been so be paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesor withheld.
(c) There are no Liens Neither the Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes (other than Permitted Liens) upon as of the property or assets date of the Company Balance Sheet that had not been accrued or reserved on the Company Balance Sheet in accordance with GAAP, and neither the Company nor any of its SubsidiariesSubsidiaries has incurred any material liability for Taxes since the date of the Company Balance Sheet other than in the Ordinary Course.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against Neither the Company or nor any of its Subsidiaries that remains unresolved has executed any outstanding waiver of any statute of limitations on or unpaidextension of the period for the assessment or collection of any Tax.
(e) There is To the Knowledge of the Company, no material Tax audit or other examination with respect to any Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination. As of the date hereof, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect material adjustment relating to any Tax Return filed by the Company or any of its Subsidiaries has been proposed in writing by any Governmental Entity. As of the date hereof, no written claim has ever been made by any Governmental Entity that the Company or any of its Subsidiaries is subject to taxation in a jurisdiction in which it does not file Tax Returns.
(f) There are (and immediately following the Effective Time there will be) no material Taxes Liens on the assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Liens.
(g) Neither the Company nor any of its Subsidiaries is has (i) in the six calendar years prior to the date of this Agreement been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (ii) ever been a party to any Tax sharing, indemnification or Tax sharing or similar Tax agreement (allocation agreement, other than an agreement that is not principally regarding Taxes, or (iii) any such agreement solely between liability for the Taxes of any person other than the Company and its existing Subsidiaries and customary under Treasury Regulations Section 1.1502-6 (or any similar provision of Applicable Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by contract, by operation of law or otherwise, other than pursuant to commercial Contracts (or Contracts with customary terms entered into in the ordinary course Ordinary Course the principal purposes of business) not primarily related which is unrelated to Taxes).
(h) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any material deduction or loss from Taxable income for any period or portion thereof after the Effective Time as a result of any (i) is liable for Taxes change in method of any other Person accounting prior to the Effective Time, (other than ii) installment sale or open transaction disposition made prior to the Effective Time, to the extent not reflected in the Company and Balance Sheet, (iii) prepaid amount received outside the Ordinary Course prior to the Effective Time or (iv) election made under Section 108(i) of the Code (or under any similar provision of Applicable Law) prior to the Effective Time. Neither the Company nor any of its SubsidiariesSubsidiaries has made an election pursuant to Section 965(h) of the Code.
(i) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Treasury Regulation Section 1.1502-6 355 of the Code (or any similar provision of state, local local, or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in non-U.S. law) within the ordinary course two calendar years prior to the date of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionthis Agreement.
(j) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or non-U.S. law).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will has not bebeen at any time, treated as an a “investment companyUnited States real property holding corporation” within the meaning of Section 368(a)(2)(F897(c)(2) of the Code.
(l) Except To the Knowledge of the Company, the Company and each of its Subsidiaries is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”) and to the Knowledge of the Company, the Merger will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(m) Neither the Company nor any of its Subsidiaries has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.
(n) Each of the Company and its Subsidiaries are in material compliance with all transfer pricing Laws, and all related material documentation required by such Laws has been timely prepared or obtained and, if necessary, retained.
(o) Neither the Company nor any of its Subsidiaries have requested, has received or is subject to any written ruling of a Taxing authority that will be binding on it for any taxable period ending after the Closing Date or has entered into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. law).
(p) To the Knowledge of the Company, except as expressly contemplated by this Agreement Agreement, there exists no facts, and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Bioceres Crop Solutions Corp.), Merger Agreement (Marrone Bio Innovations Inc)
Taxes. (a) All Each of Purchaser and its Subsidiaries has (i) timely filed all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respectsrespects when filed, and (ii) timely paid or accrued (in accordance with GAAP) all material Taxes due for all tax periods required to be paid or accrued by any of them, and payable (whether iii) withheld from its employees, creditors or not shown on any other third parties proper and accurate amounts in all material respects and, to the extent required to be paid, have timely paid to the appropriate authorities or set aside in an account for such purpose such amounts in compliance with all Tax Return) have been paidwithholding provisions (including income, social security and employment Tax withholding for all types of compensation).
(b) The Purchaser has made available to the Company true and correct copies of the United States federal income Tax Returns filed by Purchaser and its Subsidiaries for each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthree prior fiscal years.
(c) There are no Liens pending, and neither Purchaser nor any Subsidiary has received written notice of any, material federal, state, local or foreign Tax audits or examinations of Purchaser or any of its Subsidiaries. No material deficiency for any Taxes has been proposed, asserted or assessed, in writing, against Purchaser or any Subsidiary that has not been resolved and paid in full or properly reflected in the Purchaser SEC Documents.
(other than Permitted Liensd) upon There are no outstanding waivers to extend the property statutory period of limitations applicable to the assessment of any material Taxes or assets of the Company material Tax deficiencies against Purchaser or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company Purchaser nor any of its Subsidiaries is a party to any Tax indemnification agreement providing for the allocation or Tax sharing or similar Tax agreement (other than of any material Taxes, except for such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts agreements entered into by Purchaser or its Subsidiaries in the ordinary course of businessbusiness consistent with past practice.
(f) No material closing agreements, private letter rulings, technical advance memoranda or similar agreement or rulings have been entered into or issued by any Tax authority with respect to Purchaser or any of its Affiliates which are still in effect as of the date of this Agreement.
(g) There are no material Liens for Taxes upon the assets, properties or rights of Purchaser or any of its Subsidiaries that are not primarily related provided for in the Purchaser SEC Documents, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith, which contest, if determined adversely to Taxes)Purchaser, would not individually or in the aggregate have a Purchaser Material Adverse Effect.
(h) Neither the Company Purchaser nor any of its Subsidiaries has been a party to the distribution of stock of a “controlled corporation” as defined in Section 355(a) of the Code in a transaction intended to qualify under Section 355 of the Code within the past two years.
(i) Neither Purchaser nor any of its Subsidiaries has “participated” within the meaning of Treasury Regulation Section 1.6011-4(c)(3)(i)(A) in any “listed transaction” within the meaning of 6011 of the Code and the Treasury Regulations thereunder, as in effect and as amended by any guidance published by the IRS for the applicable period.
(j) Neither Purchaser nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated United States federal income Tax Return (other than a group the common parent of which is liable Purchaser), or has any liability for Taxes of any other Person person (other than the Company and Purchaser or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any analogous or similar provision of state, local local, or foreign Tax Law or tax law), as a transferee or successor successor, by contract or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesotherwise.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed all material U.S. federal, state, local and non-U.S. Tax Returns required to be filed by relating to any and all Taxes concerning or with respect attributable to the Company or Company, any of its Subsidiaries have been timely filed (taking into account any applicable extensions)or their respective operations, all and such Tax Returns (taking into account all amendments thereto) are trueReturns, correct and complete in all material respects, are true and all material Taxes due correct and payable (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(b) The Each of the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person has (i) timely paid all material Taxes it is required by applicable Law to pay, and (ii) timely paid or withheld (and timely paid over any withheld amounts to the appropriate Taxing authority) all federal and state income taxes, value-added taxes, Federal Insurance Contribution Act and Federal Unemployment Tax Act amounts, and other Taxes (including, but not limited to, all Taxes required to be reported and withheld on any U.S or non-U.S. stock options) required to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of Neither the Company or nor any of its SubsidiariesSubsidiaries had any liabilities for material unpaid Taxes as of the date of the Balance Sheet that had not been accrued or reserved on such balance sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any material liability for Taxes since the date of the Balance Sheet other than in the ordinary course of business.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against Neither the Company or nor any of its Subsidiaries that remains unresolved has executed any outstanding waiver of any statute of limitations on or unpaidextension of the period for the assessment or collection of any Tax.
(e) There is no material Tax No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect . No material adjustment relating to any material Taxes Tax Return filed by the Company has been proposed in writing by any Governmental Authority. No claim has ever been made by any Governmental Authority in a jurisdiction where the Company and its Subsidiaries do not file Tax Returns that any of them is or may be subject to taxation by that jurisdiction.
(f) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Encumbrances.
(g) Neither the Company nor any of its Subsidiaries is is, or has been at any time, a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between “United States Real Property Holding Corporation” within the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in meaning of Section 897(c)(2) of the ordinary course of business) not primarily related to Taxes)Code.
(h) Neither the Company nor any of its Subsidiaries has (ia) is liable ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (c) any liability for the Taxes of any other Person (other than the Company and its Subsidiaries) person under Treasury Regulation Section Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign Tax Law law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor successor, by contract, by operation of law or by Contract otherwise and (other than customary commercial Contracts (or Contracts entered into in the ordinary course of businessd) not primarily related to Taxes) or (ii) has ever been a member of an affiliatedparty to any joint venture, consolidated, combined partnership or unitary group filing other agreement that could be treated as a partnership for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from Taxable income as a result of (a) any change in method of accounting under Section 481(c) of the Code, (b) closing agreement under Section 7121 of the Code (or in the case of (a) and (b), under any similar provision of applicable law), (c) installment sale or open transaction disposition or (d) prepaid amount.
(j) The Company has participated not constituted either a “distributing corporation” or a “controlled corporation” in a “listed transaction” within distribution of stock intended to qualify for tax-free treatment under Section 355 of the meaning of Treasury Regulation 1.6011-4(b)(2)Code.
(k) The Company has not beenengaged in a reportable transaction under Treas. Reg. § 1.6011-4(b), including any transaction that is not, and immediately prior the same as or substantially similar to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) one of the Codetypes of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(l) Except as The Company and each of its subsidiaries is in material compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”) and, to the Company’s knowledge, the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(m) To the Transactions contemplated herebyCompany’s knowledge, neither the Company nor any of its Subsidiaries has taken is subject to Tax in any action country other than its country of incorporation or agreed formation by virtue of having a permanent establishment or other place of business;
(n) The transactions contemplated by this Agreement (including the Offer and the Merger) will not result in the payment or series of payments by the Company or any of its Subsidiaries to take any actionperson of an “excess parachute payment” within the meaning of Section 280G of the Code, nor or any other similar payment, which is not deductible for federal, state, local or foreign Tax purposes. Additionally, there is no Contract to which the Company or any of its Subsidiaries is a party, including the provisions of this Agreement which, individually or collectively, (i) could give rise to the knowledge payment of any amount that would not be deductible pursuant to or Section 280G of the Code, (ii) is subject to Section 409A of the Code, or (iii) could require Parent or any affiliate of Parent to gross up a payment to any employee of the Company or any of its Subsidiaries for Tax related payments or cause a penalty tax under Section 409A of the Code.
(o) The Company and its Subsidiaries are there any facts or circumstancesin compliance in all material respects with the relevant transfer pricing laws, that could including Treasury Regulations promulgated under Section 482 of the Code, and, to the Company’s knowledge, such compliance supports in all material respects a more likely than not standard required under Financial Interpretation No. 48 of FASB Statement No. 109 (“FIN 48”).
(p) To the Company’s knowledge, the Company and its auditors have identified all material uncertain tax positions contained in all material Tax Returns filed by the Company and/or its Subsidiaries and have, for all such positions, established adequate reserves and made appropriate disclosures in the financial statements in accordance with the requirements of FIN 48.
(q) The Company has made available to Parent all Tax Returns and all FIN 48 work papers of the Company and each of its Subsidiaries reasonably be expected to prevent the Transactions from qualifying requested by Parent for the Intended Tax Treatmentall periods since January 1, 2005.
Appears in 2 contracts
Sources: Merger Agreement (Autodesk Inc), Merger Agreement (Moldflow Corp)
Taxes. (a) All material Except as would not have, individually or in the aggregate, a Company Material Adverse Effect:
(i) (A) all Tax Returns required to be filed (taking into account extensions of time for filing) by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete in accurate; and (B) all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes that are required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of by the Company or any of its Subsidiaries.Subsidiaries (including Taxes required to be withheld from payments to shareholders, employees or other persons) have been timely paid whether or not such Taxes were reflected on such Tax Returns, in each case of the foregoing clauses (A) and (B), except for Taxes with respect to which adequate reserves have been established in accordance with GAAP in the financial statements included in the Company SEC Documents;
(dii) No as of the date hereof, there is not in force any waiver or agreement for any extension of time for the assessment or payment of any Tax by the Company or any of its Subsidiaries (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course);
(iii) (A) there is no outstanding claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved have been asserted or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified threatened in writing of by any request or threat for such an audit or other examination, Governmental Entity and (B) there are no waiversaudits, extensions examinations or written requests for Proceedings pending or threatened in writing regarding any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fiv) Neither within the past six (6) years, neither the Company nor any of its Subsidiaries has made been informed in writing by a request for or entered into Taxing Authority in a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither jurisdiction where the Company nor and its Subsidiaries do not file income or franchise Tax Returns that the Company or any of its Subsidiaries was required to file such Tax Returns, which claim has made a change of any method of accounting with respect to any Taxes.not since been withdrawn, fully settled, or otherwise resolved;
(gA) Neither neither the Company nor any of its Subsidiaries is a party to any Tax indemnification allocation, sharing or indemnity contract or arrangement (other than (x) any written agreement or arrangement solely between or among the Company and/or any of its Subsidiaries, or (y) any customary Tax sharing or similar Tax indemnification provisions contained in any written commercial agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) Ordinary Course and not primarily related relating to Taxes).
Tax) and (hB) Neither neither the Company nor any of its Subsidiaries has (ix) been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is liable or was the Company or any of its Subsidiaries) or (y) any liability for Taxes of any other Person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law non-U.S. Law) or as a transferee or successor successor, or otherwise by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course operation of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.Law;
(ivi) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither neither the Company nor any of its Subsidiaries has participated in a “listed transaction,” within the meaning of as defined in Treasury Regulation Regulations § 1.6011-4(b)(2).;
(kvii) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the three (3) years prior to the date of this Agreement; and
(viii) there are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries, except for Permitted Encumbrances.
(b) Neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could would reasonably be expected to prevent or impede the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Compass, Inc.), Merger Agreement (Anywhere Real Estate Inc.)
Taxes. (a) All For the purposes of this Agreement, "Tax" or "Taxes" refers to any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
(b) Company and each of its subsidiaries have timely filed all material Tax Returns federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to Taxes required to be filed by Company and each of its subsidiaries with any Tax authority. Such returns are true and correct in all material respects and have been completed in accordance with applicable Law, and Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(c) Company and each of its subsidiaries has withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld.
(d) Neither Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Company or any of its subsidiaries, nor has Company or any of its subsidiaries executed any unexpired waiver or extension of any statute of limitations on or extending the period for the assessment or collection of any Tax, nor has any such waiver or extension been requested from the Company or any of its subsidiaries other than an extension resulting from the filing of a Tax Return after its due date in the ordinary course of business.
(e) No audit or other examination of any Return of Company or any of its subsidiaries by any Tax authority is presently in progress, nor has Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(f) No adjustment relating to any Returns filed by Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to Company or any of its subsidiaries or any representative thereof.
(g) Neither Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on Company balance sheet dated June 30, 2001 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Company, other than any liability for unpaid Taxes that may have accrued since June 30, 2001 in connection with the operation of the business of Company and its subsidiaries in the ordinary course.
(h) There is no contract, agreement, plan or arrangement to which Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee or any director of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible by reason of Sections 280G or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(i) Neither Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(j) Except as between Company and its current subsidiaries, neither Company nor any of its subsidiaries is, or has ever been (i) a member of an affiliated group within the meaning of Section 1504(a) of the Code filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (ii) a party to or bound by any tax indemnity agreement, tax sharing agreement, tax allocation agreement or similar Contract (such agreements and Contracts, "Tax Indemnity Agreements") and neither Company nor any of its subsidiaries has or, by reason of the consummation of the transactions contemplated under this Agreement, will have any liability or obligation under any Tax Indemnity Agreement, (iii) liable for the Taxes of any person (other than Company or any of its subsidiaries)by reason of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, or otherwise, or (iv) party to any joint venture, partnership or, to the knowledge of Company, other agreement that could be treated as a partnership for Tax purposes.
(k) No claim or action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other governmental body or any arbitrator or arbitration panel is pending or, to the Company's knowledge, has been threatened against or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account subsidiaries in respect of any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidTax.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fl) Neither the Company nor any of its Subsidiaries subsidiaries has made been or will be required to include any material adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 of the Code or any comparable provision under any Tax laws as a request for result of transactions or entered into a closing agreementevents occurring, private letter rulingor accounting methods employed, advance tax ruling or similar agreement with any Governmental Authority with respect prior to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesClosing.
(gm) Neither the Company nor any of its Subsidiaries is subsidiaries has constituted either a party to any Tax indemnification "distributing corporation" or Tax sharing or similar Tax agreement a "controlled corporation" (other than any as such agreement solely between terms are defined in Section 355(a) of the Company and its existing Subsidiaries and customary commercial Contracts Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (or Contracts entered into x) in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately two years prior to the Share Exchange Closing will not bedate of this Agreement, treated as an “investment company” or (y) in a distribution that could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 368(a)(2)(F355(e) of the Code) in conjunction with the Merger.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Sage Inc/Ca), Merger Agreement (Genesis Microchip Inc)
Taxes. (a) All material Tax Company Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)when due in accordance with all Applicable Law, and all such Tax material Company Returns (taking into account all amendments thereto) are truethat have been filed were, correct true and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have paid (or have had paid on their behalf) or have withheld from amounts owing and remitted to any employee, creditor or other Person the appropriate Taxing Authority all material Taxes required by applicable Law to be withhelddue and payable, paid over to the proper Governmental Authority or, where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse) in a timely manner all such withheld amounts required to have been so paid over and complied in accordance with GAAP an adequate accrual for all material respects with all applicable withholding Taxes through the end of the last period for which the Company and related reporting requirements its Subsidiaries ordinarily record items on their respective books. There are no material Liens with respect to such TaxesTaxes other than Permitted Liens.
(c) There are is no Liens for Taxes (other than Permitted Liens) upon claim, audit, action, suit, proceeding or investigation now pending or, to the property Company’s knowledge, threatened against or assets of with respect to the Company or its Subsidiaries in respect of any of its Subsidiariesmaterial Tax.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries (A) is or has made ever been a request member of an affiliated group (other than a group the common parent of which is the Company) filing a consolidated federal income Tax Return or (B) has any liability for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change Taxes of any method person arising from the application of accounting with respect to Treasury Regulation section 1.1502-6 or any Taxesanalogous provision of state, local or foreign law, or as a transferee or successor.
(ge) Neither the Company nor any of its Subsidiaries is a party to to, is bound by or has any Tax indemnification or obligation under any Tax sharing or Tax indemnity agreement or similar Tax agreement contract or arrangement (other than any such agreement solely (i) exclusively between or among any of the Company and and/or its existing Subsidiaries and customary commercial Contracts or (or Contracts ii) entered into in the ordinary course of business) business that does not relate primarily related to Taxes).
(f) No closing agreement pursuant to section 7121 of the Code, and no material closing agreement pursuant to any similar provision of state, local or foreign law has been entered into by or with respect to the Company or any of its Subsidiaries.
(g) During the two-year period ending on the date hereof, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a any “listed reportable transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Taxes. (a) All The Company has (i) duly and timely filed (or caused to be duly and timely filed) with the appropriate Taxing Authority all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed it (taking into account any applicable extensions), extensions or waivers) and all such Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respectsrespects as of their respective dates, (ii) duly and all material Taxes due timely paid (or caused to be duly and payable (whether or not shown on any Tax Returntimely paid) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person in full all material Taxes required by applicable Law to be withheldpaid by it, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and (iii) complied in all material respects with all applicable withholding and related reporting requirements Laws with respect to the withholding and payment over of Taxes and has duly and timely withheld and paid over to the respective proper Taxing Authorities all material amounts required to be so withheld and paid over, except in each case for Taxes or Tax Returns with respect to which the Company has established or reflected an adequate reserve under GAAP or for Taxes or Tax Returns that are being defended in good faith through appropriate proceedings.
(b) Within the preceding three (3) years, no claim or nexus inquiry has been made in writing by a Taxing Authority in a jurisdiction where the Company does not file Tax Returns claiming that the Company is subject to taxation by, or is required to file any Tax Return in, such Taxesjurisdiction.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company or any of its Subsidiaries.
(d) No claimdate hereof, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes no material deficiency, claim, audit, suit or proceeding outstanding or threatened in writing against or with respect to the Company in respect of any other Person Taxes or Tax Returns, (other than ii) are no material outstanding “closing agreements” (as described in Section 7121 of the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 Code (or any corresponding or similar provision of state, local or foreign Tax Law Law)), ruling requests or requests to consent to change a method of accounting with respect to the Taxes of the Company, and (iii) are no material agreements, waivers or similar consents extending the statutory period of limitation applicable to any Taxes of the Company for any period.
(d) There are no Encumbrances for Taxes upon any property or assets of the Company, except for Permitted Encumbrances.
(e) The Company is not the subject of, nor is it bound by, any material private letter ruling, technical advice memorandum or similar ruling, memorandum, or agreement with any Taxing Authority.
(f) The Company is not a party to, nor is it bound by, any material Tax indemnification, allocation or sharing agreement that will be in existence after the Final Closing, other than any customary Tax indemnity, allocation or sharing in any agreement whose primary subject is not Taxes.
(g) The Company has never been a member of any affiliated group, within the meaning of Section 1504(a) of the Code, or a member of a combined, consolidated, or unitary group for state, local or foreign Tax purposes (in each case other than any such group of which the Company is the parent) nor has the Company had any liability for material Taxes of any other Person as a result of having been a member of any affiliated, combined, consolidated, or unitary group for U.S. federal, state, local or foreign Tax purposes (including Treasury Regulations Section 1.1502-6) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(ih) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company has not distributed the stock of another Person in a transaction that was purported or intended to be governed in whole or in part by Section 355(a) of the Code.
(i) The Company will not be required to include any material item of its Subsidiaries does not file Tax Returns that it is income in, or may be subject exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Final Closing Date, as a result of any (i) change in method of accounting for a taxable period ending on or prior to taxation in that jurisdictionthe Final Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Final Closing Date, (iii) prepaid amount received on or prior to the Final Closing Date, or (iv) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code.
(j) Neither the The Company nor has not been a party to any of its Subsidiaries has participated in a “listed transaction” within the meaning of as defined in Treasury Regulation Regulations Section 1.6011-4(b)(2).
(k) The Notwithstanding any other provision of this Agreement, it is agreed and understood that no representation or warranty is made by the Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstancesthe Transaction Agreements in respect of Tax matters, that could reasonably be expected to prevent other than the Transactions from qualifying for the Intended Tax Treatmentrepresentations in this Section 4.16.
Appears in 2 contracts
Sources: Stock Purchase Agreement (AtlasClear Holdings, Inc.), Stock Purchase Agreement (Calculator New Pubco, Inc.)
Taxes. Except as set forth on Section 5.17 of the Company Disclosure Schedule:
(a) All material Tax Returns required to be filed (taking into account extensions of time for filing) by or with respect to the Company or any Subsidiary of its Subsidiaries the Company have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all . All material Taxes that are due and payable (whether by the Company or not shown on any Tax Return) Subsidiary of the Company have been paidpaid in full.
(b) The There is no outstanding claim, deficiency or assessment against the Company or any Subsidiary of the Company for any Taxes that has been asserted in writing by any Governmental Body, and no written claim has been made, within the preceding four years, by a Governmental Body in a jurisdiction where the Company or any Subsidiary of the Company does not file Tax returns or pay Taxes that it is obligated to file Tax Returns or pay Taxes in such jurisdiction. There is no pending audit, examination or other proceeding (and the Company and each the Subsidiaries of its Subsidiaries the Company have withheld from amounts owing to not received notice in writing of any employeeproposed or threatened audit, creditor examination or other Person all material Taxes required by applicable Law to be withheld, paid over proceeding) relating to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for assessment or collection of any Taxes (other than Permitted Liens) upon the property or assets of due from the Company or any of its Subsidiaries.
(c) All Taxes required to be withheld, collected or deposited by or with respect to the Company or any Subsidiary of the Company have been timely withheld, collected or deposited as the case may be, and to the extent required, have been paid to the relevant taxing authority.
(d) No claim, assessment, deficiency There are no outstanding agreements or proposed adjustment waivers extending the time for the assessment or payment of any material amount Taxes of Tax has been asserted in writing the Company or assessed by any Governmental Authority against Subsidiary of the Company.
(e) There are no Liens (other than Permitted Liens) on any of the assets of the Company or any of its Subsidiaries that remains unresolved arose in connection with any failure (or unpaid.
(ealleged failure) There is no material Tax audit or other examination of the Company or to pay any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTax.
(f) Neither the Company nor any Subsidiary of the Company has participated, or is currently participating, in any “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(g) Neither the Company nor any Subsidiary of the Company has previously been a member of a U.S. affiliated group electing to file a consolidated Tax Return.
(h) Neither the Company nor any Subsidiary of the Company is a party to any Tax allocation, sharing or indemnity Contract or arrangement (not including, for the avoidance of doubt (i) an agreement or arrangement solely among the members of a group the common parent of which is the Company or any of its Subsidiaries has made a request for Subsidiaries, or (ii) any Tax sharing or indemnification provisions contained in any agreement entered into a closing agreementin the ordinary course of business and not primarily relating to Tax (e.g., private letter rulingleases, advance tax ruling credit agreements or similar agreement with any Governmental Authority with respect to Taxesother commercial agreements)). Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable liability for Taxes of any other Person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any Subsidiary of its Subsidiaries the Company has participated constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the two years prior to the date of this Agreement or (ii) as part of a “listed transactionplan” or “series of related transactions” (within the meaning of Treasury Regulation 1.6011-4(b)(2)Section 355(e) of the Code) in conjunction with the Transactions.
(kj) The After reasonable diligence, neither the Company nor any Subsidiary of the Company is aware of the existence of any fact, or has not beentaken or agreed to take any action, is not, and immediately prior to that would prevent the Share Exchange Closing will not be, treated Integrated Mergers from qualifying as an a “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code.
(lk) Except as contemplated by Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 5.17 and Section 5.18 are the only representations and warranties in this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor with respect to the knowledge Tax matters of the Company or any Subsidiary of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCompany.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)
Taxes. Except as would not reasonably be expected to have a Material Adverse Effect:
(a) All material Tax Returns required by Law to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)) have been filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The All material amounts of Taxes due and owing by the Company and each its Subsidiaries have been paid, other than Taxes described in clause (iii) of the definition of Permitted Liens. The Most Recent Balance Sheet reflects, in accordance with GAAP, all material unpaid Taxes of the Company and its Subsidiaries for periods (or portions of periods) through the date of the Most Recent Balance Sheet. Since the date of the Most Recent Balance Sheet, neither the Company nor any of its Subsidiaries have incurred any material Tax liability outside the ordinary course of business other than Taxes resulting from the Transactions.
(c) Each of the Company and its Subsidiaries (i) has withheld from and deducted all material amounts owing of Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any employee, creditor independent contractor, creditor, stockholder or any other Person all material Taxes required by applicable Law to be withheldthird party, paid over (ii) to the proper Governmental Authority in extent required, has remitted, or will remit on a timely manner all basis, such withheld amounts required to have been so paid over the appropriate Governmental Authority, and (iii) has complied in all material respects with all applicable withholding and related reporting requirements Law with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its SubsidiariesTax withholding, including all reporting and record keeping requirements.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for is currently engaged in any material audit, administrative proceeding or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority judicial proceeding with respect to Taxes. Neither the Company nor any of its Subsidiaries has made received any written notice from any Governmental Authority of a change of any method of accounting dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved and, to the knowledge of the Company, no such claims have been threatened in writing.
(e) No written claim has been made by any TaxesGovernmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to Tax in that jurisdiction in respect of Taxes that would be the subject of such Tax Return, which claim has not been resolved.
(f) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or any of its Subsidiaries (other than ordinary course extensions of time to file Tax Returns) and no written request for any such waiver or extension is currently pending.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into any predecessor thereof) has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the ordinary course two (2) years prior to the date of business) not primarily related to Taxes)this Agreement.
(h) Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(i) is liable for Taxes of any other Person (other than Except with respect to deferred revenue collected by the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into Subsidiaries in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is neither the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or nor any of its Subsidiaries does not file Tax Returns that it is will be required to include any material item of income in, or may be subject exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to taxation in that jurisdictionthe Closing Date and made prior to the Closing; (ii) any “closing agreement” with respect to Taxes with a Governmental Authority executed on or prior to the Closing; (iii) installment sale or open transaction disposition made on or prior to the Closing; or (iv) prepaid amount received on or prior to the Closing.
(j) There are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(k) Neither the Company nor any of its Subsidiaries has participated any material liability for the Taxes of any Person (other than the Company or its Subsidiaries) (i) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), (ii) as a transferee or successor, or (iii) by Contract or otherwise (except, in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2each case, for liabilities pursuant to commercial agreements not primarily relating to Taxes).
(kl) Neither the Company nor any of its Subsidiaries is a party to, or bound by, or has any obligation to any Governmental Authority or other Person (other than the Company or its Subsidiaries) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in each case, for any such agreements that are commercial agreements not primarily relating to Taxes).
(m) The Company has not been, is not, and immediately prior to the Share Exchange Closing First Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(ln) Except as contemplated by this Agreement The Company and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has have not taken any action or agreed to take any action, nor to the knowledge and none of the Company or any of its Subsidiaries are there is aware of any facts fact or circumstancescircumstance, that could would reasonably be expected to prevent the Transactions Mergers from qualifying for the Intended Tax Treatment.
(o) The Company has not been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(p) The Company is, and has been since its formation, treated as a corporation that is a tax resident of the United States for U.S. federal income tax purposes.
(q) Nothing in this Agreement, including this Section 5.15, shall be construed as providing a representation or warranty with respect to the existence, amount, expiration date or limitations on (or availability of) any net operating losses, Tax credits, Tax basis or other similar Tax attributes after the Closing Date. For purposes of this Section 5.15, any reference to the Company or any of its Subsidiaries shall be deemed to include any Person that merged with or was liquidated or converted into the Company or any Subsidiary, if applicable. Other than Section 5.13 to the extent such Section relates to Taxes, this Section 5.15 provides the sole and exclusive representations and warranties of the Company in respect of Tax matters.
Appears in 2 contracts
Sources: Merger Agreement (Churchill Capital Corp X/Cayman), Merger Agreement (Churchill Capital Corp X/Cayman)
Taxes. Except as set forth in Schedule 4.6 of the Disclosure Schedules:
(a) All material Tax Returns required to be filed by or with respect to the Company or any of its the Company Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (after taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidapplicable extensions).
(b) The Company All such Tax Returns are complete and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied correct in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesrespects.
(c) Each of the Company and the Company Subsidiaries has paid or caused to be paid in full all Taxes shown as due on such Tax Returns and all Taxes owed by the Company and the Company Subsidiaries for which no return was required to be filed , or has made adequate provision for all Taxes in the Financial Statements.
(d) No deficiency, adjustment or special adjustment for any Taxes has been or is expected to be asserted in writing, proposed in writing or assessed in writing against the Company or any of the Company Subsidiaries or any of their assets or properties, and the Company or any of the Company Subsidiaries knows of no grounds for any such deficiency, adjustment or special adjustment for any Taxes.
(e) There are no Liens examinations, audits currently in progress, pending or, to the Knowledge of the Company, threatened against the Company or any of the Company Subsidiaries.
(f) There are no outstanding agreements, waivers or arrangements extending the statutory period of limitation applicable to any claim for, or the period for the collection or assessment of, Taxes due from or with respect to the Company or any of the Company Subsidiaries for any taxable period.
(other than Permitted Liensg) upon No power of attorney granted by or with respect to the property Company or assets any of the Company Subsidiaries relating to Taxes is currently in force.
(h) The Company has delivered or made available to Purchaser for inspection (i) complete and correct copies of all income Tax Returns for the calendar years 2008, 2009, and 2010, and (ii) complete and correct copies of rulings, closing agreements, settlement agreements, deficiency notices and any similar documents submitted by, received by or agreed to by or on behalf of the Company or any of its Subsidiariesthe Company Subsidiaries and relating to material Taxes for such taxable periods.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fi) Neither the Company nor any of its the Company Subsidiaries has any liability for the Taxes of any Person (other than the Company or any of the Company Subsidiaries) under any applicable Law, as a transferee or successor, by Contract, or otherwise.
(j) There are no Encumbrances for Taxes upon any of the assets or properties of the Company or any of the Company Subsidiaries, other than for Taxes not yet due and payable.
(k) No claim has ever been made by a request Governmental Entity in a jurisdiction where the Company or any of the Company Subsidiaries does not file Tax Returns that the Company or any of the Company Subsidiaries is or may be subject to taxation by that jurisdiction, and to the Knowledge of the Company, there is no basis for any such claim to be made.
(l) The Company and the Company Subsidiaries have duly deducted, withheld, and timely paid to the appropriate Governmental Entities all Taxes required to be deducted, withheld, or entered into a closing agreement, private letter ruling, advance tax ruling paid in connection with amounts paid or similar agreement owing to any Person.
(m) The Company and the Company Subsidiaries have complied with any Governmental Authority all reporting and record keeping requirements with respect to Taxes. Neither the Company nor any , and have retained copies of its Subsidiaries has made a change of any method of accounting with respect all Tax Returns and all material documents relating to any Taxes, including, without limitation, Tax payment certificates, Tax deduction approvals and Tax filing supporting documents.
(gn) Neither the Company nor any of its the Company Subsidiaries is a party to to, or bound by, or has any obligation under, any Tax indemnification allocation or Tax sharing agreement or similar Tax Contract or arrangement or any agreement (other than that obligates it to make any such agreement solely between payment computed by reference to the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(ho) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or All related party transactions conducted by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesthe Company Subsidiaries have been conducted and are conducted at arm’s length, and have been properly documented and reported pursuant to applicable Law, including the transfer pricing Law of the relevant jurisdictions.
(ip) Within the past three No financial subsidies or Tax incentives (3) yearsincluding, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated without limitation, a reduction in a “listed transaction” within Tax rate, exemption from Tax or Tax refund) will be required to be repaid or clawed back after the meaning Closing, as a result of Treasury Regulation 1.6011-4(b)(2).
any action taken or event occurring on or before the Closing Date (k) The Company has not beenincluding, is notwithout limitation, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by entering into this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentTransaction).
Appears in 2 contracts
Sources: Share Purchase Agreement (Jinglong Group Co., Ltd.), Share Purchase Agreement (JA Solar Holdings Co., Ltd.)
Taxes. (a) (i) All material Tax Returns required to be filed by or with respect to the Company or any of Parent, its Subsidiaries and each Parent Consolidated Group have been timely and correctly filed (taking into account any in accordance with all applicable extensions), Laws and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, (ii) Parent, its Subsidiaries and each Parent Consolidated Group have timely paid all material Taxes due or claimed to be due and payable (will have paid all material Taxes of Parent, its Subsidiaries and each Parent Consolidated Group that are due on or before the Closing Date, including any installments or estimated payments due, whether or not shown on any Tax ReturnReturns, (iii) all material Employment and Withholding Taxes and any other material amounts required to be withheld with respect to Taxes have been paideither duly and timely paid to the proper Governmental Entities or properly set aside in accounts for such purpose in accordance with applicable Laws, (iv) the charges, accruals and reserves for Taxes with respect to Parent, its Subsidiaries and each Parent Consolidated Group reflected in the balance sheet, dated as of December 31, 2011, included in Parent’s Annual Report on Form 10-K for the year ended December 31, 2011 (the “Parent Balance Sheet”) are adequate under GAAP, (v) no material deficiencies or other claims for any Taxes asserted or assessed, or, to the Knowledge of Parent, proposed, against Parent or any of its Subsidiaries has not been resolved in all material respects, (vi) there is no material Litigation pending or, to the Knowledge of any of Parent or its Subsidiaries, threatened or scheduled to commence, against or with respect to Parent or any of its Subsidiaries in respect of any Tax or Return, and (vii) since December 31, 2005, neither Parent nor any of its Subsidiaries has received (A) notice from any federal taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns or (B) notice from any state taxing authority of its intent to examine or audit any of Parent’s or any of its Subsidiaries’ Returns, other than notices with respect to examinations or audits by any state taxing authority that have not had and would not reasonably be expected to have a Material Adverse Effect on Parent.
(b) The Company statutes of limitations for the federal income Tax Returns of Parent, its Subsidiaries and each of its Subsidiaries Parent Consolidated Group have withheld from amounts owing to any employee, creditor expired or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to otherwise have been so paid over and complied in closed for all material respects with all applicable withholding and related reporting requirements with respect to such Taxestaxable periods ending on or before December 31, 2005.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company Parent nor any of its Subsidiaries has made been a request member of any “affiliated group” (as defined in Section 1504(a) of the Code) or has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only Parent and any Subsidiaries of Parent) provided for under the Laws of the United States, any foreign jurisdiction or entered into a closing agreement, private letter ruling, advance tax ruling any state or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company locality and none of Parent nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither liability for the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision under any state, local or foreign law), or as a successor or transferee.
(d) There are no Tax sharing, allocation, indemnification or similar agreements or arrangements, whether written or unwritten, in effect under which Parent or any of its Subsidiaries could be liable for any material Taxes of any Person other than Parent or any Subsidiary of Parent.
(e) Since December 31, 2005 neither Parent nor any of its Subsidiaries has entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes, nor is any request for such a waiver or extension pending.
(f) There are no Liens for Taxes on any asset of Parent or its Subsidiaries, except for Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries is the subject of or bound by any material private letter ruling, technical advice memorandum, closing agreement or similar material ruling, memorandum or agreement with any taxing authority.
(h) Neither Parent nor its Subsidiaries has entered into, has any liability in respect of, or has any filing obligations with respect to, any “reportable transactions,” as defined in Section 1.6011-4(b)(1) of the Treasury Regulations.
(i) Neither Parent nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or Law), (ii) has ever been a member “closing agreement” as described in Section 7121 of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Code (or any corresponding or similar provision of its Subsidiaries.
(istate, local or foreign Tax Law) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company executed on or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not beDate, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.or
Appears in 2 contracts
Sources: Merger Agreement (Halcon Resources Corp), Merger Agreement (Georesources Inc)
Taxes. (a) All Each of Company and its Subsidiaries (i) has timely filed or caused to be timely filed, taking into account any extensions, all U.S. federal income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all it and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and (ii) has timely paid all material Taxes due and payable required to have been paid by it (whether or not shown on any Tax Return) ), except for Taxes that are being contested in good faith in appropriate proceedings or for which adequate reserves have been paidestablished in accordance with GAAP.
(b) The Each of Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and has complied in all material respects with all applicable Laws relating to the payment, collection, withholding and related reporting requirements remittance of Taxes, including with respect to such Taxespayments made to or received from any employee, creditor, shareholder, customer or other third party.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the any property or assets of the Company or any of its Subsidiaries, except for statutory Liens for Taxes not yet due and payable.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit audit, examination, deficiency, refund litigation, proposed adjustment or other examination of the Company or any of its Subsidiaries presently matter in progress controversy with respect to any material Taxes, nor has the Taxes or Tax Return of Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationSubsidiaries, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the neither Company nor any of its Subsidiaries has received written notice of any claim made by a request for Governmental Entity in a jurisdiction where Company or entered into any of its Subsidiaries, as applicable, does not file a closing agreementTax Return, private letter ruling, advance tax ruling that Company or similar agreement with any Governmental Authority such Subsidiary is or may be subject to income taxation by that jurisdiction. No deficiency with respect to Taxes. any Taxes has been proposed, asserted or assessed in writing against Company or any of its Subsidiaries, and no requests for waivers of the time to assess any Taxes are pending.
(e) Neither the Company nor any of its Subsidiaries has made a change granted any extension or waiver of any method of accounting with respect the limitation period applicable to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any material Tax indemnification or Tax sharing or similar Tax agreement that remains in effect (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (extension or Contracts entered into waiver granted in the ordinary course of business) not primarily related to Taxes).
(hf) Neither the Company nor any of its Subsidiaries (i) is liable or has been a member of any affiliated, consolidated, combined, unitary or similar group for Tax purposes (other than a group of which Company or a Subsidiary of Company is the common parent), (ii) is a party to or is bound by any Tax sharing, allocation or indemnification agreement (other than (A) any such agreement entered into in the ordinary course of business and the principal subject matter of which is not Taxes and (B) any such agreement exclusively between or among Company and its Subsidiaries) or (iii) has any liability for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(ig) Within the past three two (32) years, no written claim has been made by any Governmental Authority where the none of Company or any of its Subsidiaries does not file Tax Returns that it is has been a “distributing corporation” or may be subject a “controlled corporation” in a distribution intended to taxation in that jurisdictionqualify for tax-free treatment under Section 355 of the Code.
(jh) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).
(ki) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Neither Company nor any of its Subsidiaries has taken any action or agreed to take any actionaction or is aware of any fact or circumstance that would prevent or impede, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent or impede, the Transactions Mergers, taken together, from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
(j) As used in this Agreement, the term “Tax” or “Taxes” means all federal, state, local, and foreign income, excise, gross receipts, ad valorem, profits, gains, property, capital, sales, transfer, use, license, payroll, employment, social security, severance, unemployment, withholding, duties, excise, windfall profits, intangibles, franchise, backup withholding, value added, alternative or add-on minimum, estimated and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest imposed by any Governmental Entity with respect thereto.
Appears in 2 contracts
Sources: Merger Agreement (HomeStreet, Inc.), Merger Agreement (Firstsun Capital Bancorp)
Taxes. (a) All material Tax Returns required by Law to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and . The Financial Statements accrue in accordance with GAAP all material liabilities for Taxes due and payable (whether or not shown on any Tax Return) have been paidwith respect to all periods through the date thereof.
(b) The All material amounts of Taxes due and owing by the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationpaid, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of since the Company or any of its Subsidiaries.
(f) Neither Latest Balance Sheet Date neither the Company nor any of its Subsidiaries has made incurred any material Tax liability outside the ordinary course of business.
(c) Each of the Company and its Subsidiaries has (i) withheld all material amounts required to have been withheld by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) remitted, or will remit on a request for or entered into a closing agreementtimely basis, private letter ruling, advance tax ruling or similar agreement such amounts to the appropriate Governmental Authority; and (iii) complied in all material respects with any Governmental Authority applicable Law with respect to Tax withholding.
(d) Neither the Company nor its Subsidiaries is engaged in any audit or other administrative proceeding with a taxing authority or any judicial proceeding with respect to material Taxes. Neither the Company nor its Subsidiaries has received any written notice from a taxing authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved, and to the knowledge of the Company, no such claims have been threatened.
(e) Within the last six (6) years, no written claim has been made, and to the knowledge of the Company, no oral claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries has made does not file a change Tax Return that such entity is or may be subject to Taxes by that jurisdiction in respect of any method Taxes that would be the subject of accounting with respect such Tax Return.
(f) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any Taxesclaim for, or the period for the collection or assessment or reassessment of, material Taxes of the Company or its Subsidiaries and no written request for any such waiver or extension is currently pending.
(g) Neither the Company nor any of its Subsidiaries is has requested or entered into a closing agreement, private letter ruling, technical advice memorandum, advance pricing agreement or similar agreement with any taxing authority that could reasonably be expected to affect the Taxes of the Company or any of its Subsidiaries after the Closing Date. Neither the Company nor any of its Subsidiaries will be subject to any recapture, clawback, termination or similar adverse consequence with respect to any Tax incentive, holiday, credits or other Tax reduction, deferral or abatement arrangement (excluding, for the avoidance of doubt, any net operating loss) as a result of the Merger.
(h) Neither the Company nor its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the prior two (2) years.
(i) Neither the Company nor its Subsidiaries has been a party to any Tax indemnification or Tax sharing or similar Tax agreement “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
(other than any such agreement solely between j) Neither the Company and nor its existing Subsidiaries and customary commercial Contracts will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or Contracts entered into portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing or use of an improper method of accounting prior to the Closing; (ii) any written agreement with a Governmental Authority executed prior to the Closing; (iii) installment sale or open transaction disposition made prior to the Closing; or (iv) prepaid amount received prior to the Closing outside of the ordinary course of business) not primarily related to Taxes).
(hk) There are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(l) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or and is the Company or any of its Subsidiaries or (ii) except pursuant to an agreement entered into in the ordinary course of business the principal purpose of which does not relate to Taxes (each, a “Commercial Contract”), has any liability for the Taxes of any Person (other than the Company or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or as a transferee or successor, by Contract or otherwise.
(im) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file is a party to, or bound by, or has any obligation to any Governmental Authority or other Person under any Tax Returns that it allocation, Tax sharing, or Tax indemnification agreements, other than pursuant to a Commercial Contract. Neither the Company nor its Subsidiaries has granted a power of attorney which is currently in force with respect to any material Taxes or may be subject to taxation in that jurisdictionmaterial Tax Returns.
(jn) The Company is not and has not been during the last five (5) years a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(o) Any entity classification elections made on Form 8832 (Entity Classification Election) with respect to the Company or its Subsidiaries are set forth on Schedule 4.16(o).
(p) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has taken or agreed to take any action not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and and/or any related ancillary documents that could reasonably be expected to prevent the Transactions contemplated hereby, neither Merger from qualifying for the Intended Tax Treatment. Neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company any fact or any of its Subsidiaries are there any facts or circumstances, circumstance that could reasonably be expected to prevent the Transactions Merger from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (American Battery Materials, Inc.), Merger Agreement (Seaport Global Acquisition II Corp.)
Taxes. (a) All The Company and each of its Subsidiaries has timely filed all income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)them, all and each such Tax Returns Return (taking into account all amendments thereto) are is true, correct and complete in all material respects, respects (insofar as it reflects the ultimate liability for Taxes due) and has been prepared in substantial compliance with all material Taxes due and payable (whether or not shown on any Tax Return) have been paidApplicable Laws.
(b) The Company and each of its Subsidiaries has (i) paid all material amounts of Taxes that have become due and payable by each of them, regardless of whether such Taxes are required to be reflected on any Tax Return and (ii) withheld from and paid all material Taxes required to have been withheld and paid by each of them in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, stockholder, or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird party.
(c) There are is no Liens (i) claim for material amounts of Taxes being asserted or assessed against the Company or any Subsidiary by any Governmental Authority that has not been fully paid or otherwise fully resolved, (ii) to the knowledge of the Company, material audit of any Tax Return of the Company or any Subsidiary pending or being conducted by a Governmental Authority, (iii) extension of any statute of limitations on the assessment of any material amount of Taxes granted by the Company or any Subsidiary currently in effect (other than Permitted Lienspursuant to extensions of time to file Tax Returns automatically granted), (iv) upon agreement with a Governmental Authority to any extension of time for filing any material Tax Return which has not been filed (other than extensions of time for filing automatically granted), or (v) Lien for Taxes on any of the property or assets of the Company or any of its Subsidiaries.
(d) Subsidiaries other than any Permitted Liens. No claim, assessment, deficiency or proposed adjustment for any material amount of Tax written claim has been asserted in writing received on or assessed after January 1, 2019 by any Governmental Authority against the Company or any of its Subsidiaries from any Governmental Authority in a jurisdiction that remains unresolved has not been resolved where neither the Company nor any Subsidiary files Tax Returns asserting that the Company or unpaidany Subsidiary is required to file a material Tax Return with that jurisdiction or that the Company or any Subsidiary is liable for any material amount of Tax or is required to collect and withhold any material amount of Tax.
(d) Neither the Company nor any Subsidiary (i) is a party to or bound by any material Tax sharing, Tax indemnity, or Tax allocation agreement or (ii) has any liability or potential liability to another party under any such agreement, in each case other than (y) agreements entered into in the ordinary course of business and the primary purpose of each of which does not relate to Taxes, and (z) agreements the only parties of which are the Company and/or one or more of its Subsidiaries.
(e) There Neither the Company nor any Subsidiary has participated in, or is no material Tax audit or other examination currently participating in, any “listed transaction” within the meaning of Section 6707A(c) of the Company Code or any Treasury Regulation Section 1.6011-4(b), or under a corresponding or similar provision of its Subsidiaries presently state, local, or foreign law (other than a “loss transaction” as described in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTreasury Regulation Section 1.6011-4(b)(5)).
(f) Neither the Company nor any Subsidiary or any predecessor of its Subsidiaries the Company or any Subsidiary (i) has made since December 31, 2017, been a request member of a consolidated, combined, unitary or aggregate group of which the Company or any predecessor of the Company (or any Subsidiary of the Company) was not the ultimate parent or (ii) has, to the knowledge of the Company, any actual unpaid liability for the Taxes of any person (other than the Company or any Subsidiary) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign law) as a transferee or successor, or by contract, in each case other than pursuant to or arising from (y) agreements entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect in the ordinary course of business and the primary purpose of each of which does not relate to Taxes. Neither Taxes and (z) the Company nor or any Subsidiary being a member of a consolidated, combined, unitary and/or aggregate group prior to December 31, 2017 that included Intel Corporation and its Subsidiaries has made a change of any method of accounting with respect to any Taxesaffiliates.
(g) Neither the Company nor any of its Subsidiaries (i) is a party to or bound by any “closing agreement” described in Section 7121 of the Code (or any corresponding provision of Applicable Law) or other written agreement with a Taxing Authority regarding Taxes or Tax matters or (ii) has requested or received any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between ruling, in either case that would have continuing effect after the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)Closing Date.
(h) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any: (i) is liable change in method of accounting or use of an improper method of accounting for Taxes a taxable period ending on or prior to the Closing Date pursuant to Section 481 of any other Person the Code (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any corresponding or similar provision of stateApplicable Law), local in each case prior to Closing; (ii) installment sale or foreign Tax Law open transaction disposition made or as a transferee or successor or by Contract (prepaid amount received prior to the Closing, in each case, other than customary commercial Contracts (or Contracts entered into amounts received in the ordinary course of business; (iii) not primarily related intercompany transaction entered into prior to Taxesthe Closing or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of Applicable Law) relating to transactions occurring prior to the Closing; (iv) gain recognition agreement under Section 367 of the Code (or any corresponding provision of Applicable Law); or (iiv) has ever been a member election under Section 965(h) of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company Code (or any corresponding provision of its SubsidiariesApplicable Law) made in a period or portion thereof ending on or prior to the Closing Date.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries (i) has participated ever had a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has had an office or fixed place of business in a country outside of the jurisdiction of its incorporation or organization, or (ii) is resident for Tax purposes in a country outside of its jurisdiction of incorporation or organization.
(j) The Company and its Subsidiaries have complied in all material respects with all Applicable Laws related to transfer pricing.
(k) Neither the Company nor any Subsidiary has constituted either a “listed transactiondistributing corporation” or a “controlled corporation” in a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of the Closing.
(l) Either (i) 50% or more of the value of the gross assets of OpCo LLC does not consist of U.S. real property interests within the meaning of Section 897 of the Code and the Treasury Regulations thereunder or (ii) 90% or more of the value of the gross assets of OpCo LLC does not consist of U.S. real property interests plus cash or cash equivalents, within the meaning of Treasury Regulation 1.6011Regulations Section 1.1445-4(b)(211T(d)(2).
(km) The Company Each of OpCo LLC and McAfee Finance 2, LLC is classified as a partnership for U.S. federal income tax purposes and has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of in effect a valid election under Section 368(a)(2)(F) 754 of the Code.
(ln) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor Notwithstanding anything herein to the knowledge contrary, the representations and warranties contained in this Section 4.16 and, to the extent expressly referring to Code sections, Section 4.17 are the sole and exclusive representations of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected with respect to prevent the Transactions from qualifying for the Intended Taxes and Tax Treatmentmatters.
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Taxes. (a) All material The Company represents and warrants the following:
(i) the Company and each of the Company Subsidiaries have prepared and timely filed with the appropriate Governmental Authorities all franchise, income and all other Tax Returns returns and reports required to be filed on or before the date hereof (collectively the “Returns”), taking into account any extension of time to file granted to or obtained on behalf of the Company or Company Subsidiaries;
(ii) other than such Taxes as are adequately reserved for in accordance with GAAP, all Taxes of the Company and each of the Company Subsidiaries shown on such Returns have been timely paid in full to the proper authorities;
(iii) all deficiencies resulting from examinations by or with respect to Tax authorities of income, sales and franchise and all other Returns filed by the Company or any of its the Company Subsidiaries in any jurisdiction in which such Returns are required to be so filed have been timely filed (taking into account paid or adequately reserved for in accordance with GAAP and no claim has been asserted against the Company in writing by any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority taxing authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of jurisdiction where the Company or any of its Subsidiaries.the Company Subsidiaries does not file Returns that the Company or any Company Subsidiary is subject to the taxation by that jurisdiction;
(div) No claim, assessment, no deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its the Company Subsidiaries that remains unresolved in writing which has not been satisfied or unpaid.
(e) There is otherwise resolved or adequately reserved for in accordance with GAAP, and no material Tax audit or other tax examination of the Company or any of its the Company Subsidiaries presently is pending or, to the Knowledge of the Company, threatened, by any taxing authority;
(v) no extension of the period for assessment or collection of any material Tax is currently in progress effect and no extension of time within which to file any material Return has been requested;
(vi) all Returns filed by the Company and each of the Company Subsidiaries are correct and complete in all material respects or adequate reserves have been established with respect to any material Taxesadditional Taxes that may be due (or may become due) as a result of such Returns not being correct or complete;
(vii) to the Knowledge of the Company, nor has the Company or any of its Subsidiaries no Tax liens have been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect filed with respect to any material Taxes Taxes;
(viii) neither the Company nor any of the Company Subsidiaries have: (A) filed a consent under Code Section 341(f) concerning collapsible corporations; (B) executed, become subject to, or entered into any closing agreement pursuant to Section 7121 of the Code or any similar or predecessor provision thereof under the Code or other Tax Law, (C) received approval to make or agreed to a change in tax accounting method, or (D) incurred or assumed any liability for the Taxes of any Person;
(ix) the Company and the Company Subsidiaries have not entered, nor do they plan to enter into, any agreement, arrangement, plan or similar circumstance with any Person that could result in a distribution, apportionment or reallocation under Section 482 of the Code or other similar provision of the Tax Law;
(x) neither the Company nor any of the Company Subsidiaries has made since July 1, 2003, and none will make, any voluntary tax adjustment by reason of a change in its Subsidiariesaccounting methods for any pre-Merger period;
(xi) the Company and each of the Company Subsidiaries has made timely payments or deposits of the Taxes required to be deducted and withheld in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party;
(xii) neither the Company nor any of the Company Subsidiaries is a party to any Tax sharing or Tax matters agreement, or a party to any agreement to indemnify any Person for Taxes; and
(xiii) the Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(fb) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification agreement, contract, or Tax sharing arrangement that would, as a result of the transactions contemplated hereby, result, separately or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries aggregate, in (i) is liable for Taxes the payment of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment companyexcess parachute payments” within the meaning of Section 368(a)(2)(F280G of the Code by reason of the Merger, (ii) the payment of any form of compensation or reimbursement for any Tax incurred by any Person arising under Section 280G of the Code, or (iii) the payment of any amounts not deductible by the Company or any of the Company Subsidiaries, in whole or in part, by reason of Section 162(m) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Pacer Technology), Merger Agreement (Pacer Technology)
Taxes. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect:
(i) All material Tax Returns required to be filed by or with respect to the Company Parent or any of its Subsidiaries have been duly and timely filed (taking into account any applicable extensionsvalid extensions of time for filing), and all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all material . All Taxes that are due and payable by Parent or any of its Subsidiaries (whether or not shown reflected on any Tax Return) have been paidduly and timely paid or adequate reserves in respect thereof have been established on the financial statements of Parent in accordance with GAAP. All withholding Tax requirements imposed on or with respect to payments by Parent or any of its Subsidiaries to employees, creditors, equityholders or other Persons have been satisfied, and Parent and its Subsidiaries have complied in all respects with all related information reporting and record retention requirements.
(bii) The Company and each There is not in force any waiver or agreement for any extension of time for the assessment or payment of any Tax by Parent or any of its Subsidiaries have withheld from amounts owing (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), and no power of attorney that has been granted by Parent or any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements of its Subsidiaries with respect to such Taxesa Tax matter is currently in effect.
(ciii) There is no outstanding claim, assessment or deficiency against Parent or any of its Subsidiaries for any Taxes that has been asserted in writing by any Taxing Authority. There are no Liens for Proceedings with respect to Taxes (other than Permitted Liens) upon the property pending or assets of the Company threatened in writing against Parent or any of its Subsidiaries.
(div) Neither Parent nor any of its Subsidiaries has been a member of an affiliated, consolidated, combined, unitary or similar group for purposes of filing any Tax Return (other than a group the common parent of which is Parent or any of its Subsidiaries) or has any liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations § 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by reason of assumption or by operation of Law.
(v) Neither Parent nor any of its Subsidiaries will be required to include any item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (1) any change in method of accounting occurring prior to the Closing pursuant to Section 481 of the Code (or any similar provision of state, local, or non-U.S. Law), (2) any installment sale or open transaction made prior to Closing, (3) any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to or existing as of immediately prior to the Closing, (4) any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing, or (5) any deferred revenue or prepaid amount received or paid prior to the Closing outside of the ordinary course of business.
(vi) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax written claim has been asserted in writing or assessed made by any Governmental Taxing Authority against the Company in a jurisdiction where Parent or any of its Subsidiaries does not currently file a Tax Return that remains unresolved Parent or unpaidsuch Subsidiary is or may be subject to any Tax or required to file any Tax Return in such jurisdiction.
(vii) There are no Encumbrances for Taxes on any of the assets of Parent or any of its Subsidiaries, except for Permitted Encumbrances with respect to Taxes described in clause (b) of the definition of Permitted Encumbrances.
(viii) Each of Parent and its Subsidiaries are in compliance with all applicable transfer pricing Tax Laws, including Section 482 of the Code and the Treasury Regulations promulgated thereunder and any similar provision of state, local or non-U.S. Tax Law.
(ix) Neither Parent nor any of its Subsidiaries has participated, or is currently participating, in a “listed transaction,” as defined in Treasury Regulations § 1.6011-4(b)(2).
(x) Neither Parent nor any of its Subsidiaries has applied for any Tax relief under, deferred the payment of Tax or the recognition of taxable income or gain as result of, or is otherwise subject to any Tax provision of, a Pandemic Response Law.
(b) Neither Parent nor any of its Subsidiaries is a party to, has any obligation under or is bound by any material Tax allocation, sharing or indemnity Contract or arrangement pursuant to which it will have any potential material liability to any Person after the First Merger Effective Time (excluding (i) any Contract or arrangement solely between or among Parent and/or any of its Subsidiaries, and (ii) any customary provisions contained in any commercial agreement entered into in the ordinary course of business and not primarily relating to Tax).
(c) Neither Parent nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).
(d) The consummation of the Transactions is not reasonably expected to cause (x) the Spin to fail to qualify for tax-free treatment under Section 355 or (y) the Company shares distributed in the Spin to not be treated as “qualified property” (for purposes of Section 355(c)(2) or Section 361(c)(2) of the Code) by reason of the application of Section 355(d) or Section 355(e) of the Code).
(e) There is no No material Tax audit closing agreements, private letter rulings, technical advice memoranda or other examination similar written agreements or rulings have been entered into with or issued by any Taxing Authority within the three (3)-year period immediately preceding the date of the Company or any of its Subsidiaries presently in progress this Agreement with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company Parent or any of its Subsidiaries.
(f) Neither To the Company nor any knowledge of its Subsidiaries has made a request for Parent, (i) no property or entered into a closing agreement, private letter ruling, advance tax ruling liabilities have been transferred to or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification from Parent or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (iincluding by contribution or distribution) is liable for Taxes of any other Person as, and (other than ii) the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of stateSpin was not, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course case of business) not primarily related to Taxeseither clause (i) or (ii) has ever been ), part of a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than plan a group the common parent principal purpose of which was or is to avoid the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning purposes of Section 368(a)(2)(F) 7874 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)
Taxes. (a) All material Tax Returns required by Applicable Law to be filed by with any Taxing Authority by, or with respect to on behalf of, the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are trueare, correct or shall be at the time of filing, true and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have has paid (or has had paid on its behalf) or has withheld from amounts owing and remitted to any employee, creditor or other Person the appropriate Taxing Authority all material Taxes required by applicable Law to be withhelddue and payable, paid over to the proper Governmental Authority or, has otherwise established (or has had established on its behalf and for its sole benefit and recourse) in a timely manner all such withheld amounts required to have been so paid over and complied in accordance with GAAP an adequate accrual for all material respects with all applicable withholding and related reporting requirements with respect to such TaxesTaxes through the Company Balance Sheet Date. All liabilities for Taxes that arose since the Company Balance Sheet Date arose in the ordinary course of business.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company or any of its Subsidiaries.
date hereof, (di) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against there is no Proceeding now pending with respect to the Company or any of its Subsidiaries in respect of any material Tax, or, to the knowledge of the Company, threatened in a writing received from a Governmental Authority and (ii) neither the Company nor any of its Subsidiaries has been informed in writing by any Governmental Authority that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Governmental Authority believes that the Company or any of its Subsidiaries presently in progress with respect was required to pay any material Taxes, nor has Tax that was not paid or file a material Tax Return that was not filed.
(d) Neither the Company or nor any of its Subsidiaries been notified in writing has granted any extension or waiver of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any the statute of limitations currently in effect with respect period applicable to any material Tax Return, which period (after giving effect to such extension or waiver) has not yet expired.
(e) Neither the Company nor any of its Subsidiaries (i) is or has ever been a member of a group of corporations with which it has filed (or been required to file) consolidated, combined or unitary Tax Returns, other than a group of which only the Company and its Subsidiaries are or were members or (ii) has any liability for Taxes of any Person (other than the Company or such Subsidiaries) pursuant to any Tax allocation or sharing agreement, under Treasury Regulations Section 1.1502-6 (or any similar provision of its Subsidiariesstate, local or foreign law), or as a transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made been either a request for “distributing corporation” or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect “controlled corporation” in a distribution to Taxes. Neither which Section 355 of the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesCode is applicable.
(g) Neither the Company nor any of its Subsidiaries is a party to have consummated or participated in, nor are currently participating in, any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of transaction which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transactiontax shelter” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not beentransaction as defined in Sections 6662, is not6011, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) or 6111 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
Taxes. (a) (i) All income and other material Tax Returns that are required to be filed by or with respect to the Company or any of Parent and its Subsidiaries have been timely filed (taking into account any applicable extensionsextensions of time for filing), all ; (ii) each such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, ; and (iii) all material Taxes owed by the Company or for which the Company is liable that are or have become due and payable (whether or not shown on any Tax Return) have been paidpaid in full.
(b) The Company All Tax withholding and each of deposit requirements imposed on or with respect to Parent and its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied satisfied in all material respects respects, and Parent and its Subsidiaries have complied with all applicable withholding information reporting (and related reporting withholding) and record retention requirements with respect to such Taxesin all material respects.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or Neither Parent nor any of its SubsidiariesSubsidiaries has entered into a written agreement waiving or extending any statute of limitations in respect of any material Taxes.
(d) No claimTaxing Authority has asserted, proposed or, to Parent’s knowledge, threatened any assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes or material Tax Returns of the Company Parent or any of its Subsidiaries.
(e) No written claim or nexus inquiry has been made by a Taxing Authority in a jurisdiction where neither Parent nor any of its Subsidiaries file Tax Returns that Parent or one of its Subsidiaries is or may be subject to taxation by such jurisdiction.
(f) No claim, audit, action, suit, proceeding, examination or investigation is being conducted, pending or, to the knowledge of Parent, threatened with respect to Parent or its Subsidiaries in respect of any material Tax.
(g) Neither the Company Parent nor any of its Subsidiaries has made been a request for member of an affiliated group filing a consolidated, combined or entered into unitary U.S. federal, state, local or non-U.S. income Tax Return (other than a closing agreementgroup of which Parent is the common parent), private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company and neither Parent nor any of its Subsidiaries has made a change any liability for the Taxes of any method of accounting with respect to any Taxes.
(g) Neither the Company nor Person other than Parent or any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local local, or foreign non-U.S. income Tax Law law) or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariessuccessor.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jh) Neither the Company Parent nor any of its Subsidiaries has participated or engaged in any transaction that constitutes a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2).
(i) There are no Liens for material Taxes on any of the assets of Parent or its Subsidiaries other than Permitted Liens.
(j) Neither Parent nor any of its Subsidiaries is a party to or bound by any Tax allocation, sharing or indemnity agreements or arrangements (other than any commercial agreements or contracts entered into in the ordinary course of business and that are not primarily related to Taxes).
(k) The Company has not been, Neither Parent nor any of its Subsidiaries is not, and immediately prior a party to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codea tax receivable agreement.
(l) Except Parent and Merger Sub I are, and have been since formation, properly classified as contemplated by this Agreement corporations for U.S. federal income tax purposes, and the Transactions contemplated herebyMerger Sub II is, neither the Company and has been since formation, properly classified as an entity disregarded as separate from Parent for U.S. federal income tax purposes in accordance with Treasury Regulations Section 301.7701-3.
(m) Neither Parent nor any of its Subsidiaries has taken advantage of any action Applicable Law enacted in connection with COVID-19 that has the result of temporarily reducing (or agreed to take temporarily delaying the due date of) any action, nor to the knowledge payment obligation of the Company Parent or any of its Subsidiaries are there to any facts Taxing Authority (including any payroll Taxes deferred pursuant to the CARES Act or circumstancesany similar provision of Applicable Law). Notwithstanding any other provisions of this Agreement, that could reasonably be expected the representations and warranties in Section 4.18 (to prevent the Transactions from qualifying for extent relating to Tax matters) Section 4.19 (to the Intended extent relating to Tax Treatmentmatters), this Section 4.21 and Section 4.22 constitute the sole and exclusive representations and warranties made by Parent with respect to Tax matters.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Taxes. (a) All material The Company and each Company Subsidiary have (i) duly and timely filed with the appropriate Taxing Authorities all Tax Returns required to be filed by or with them in respect to the Company or of any of its Subsidiaries have been timely filed (taking into account any applicable extensions)Taxes, all such which Tax Returns (taking into account all amendments thereto) are were true, correct and complete in all material respects, (ii) duly and timely paid or remitted in full or withheld all Taxes that are due and payable by them, whether or not such Taxes were shown as due on any Tax Returns, (iii) established reserves in accordance with GAAP for the payment or remittance of all material Taxes due for all periods or portions thereof ending through the date hereof, and payable (whether or not shown on any Tax Returniv) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all laws applicable to the payment, remittance and withholding of Taxes and related reporting requirements have timely withheld and paid over to the respective proper Taxing Authorities all amounts required to be so withheld and paid over.
(b) There (i) is no deficiency, claim, audit, suit, proceeding, request for information or investigation now pending, outstanding or, to the knowledge of the Company, threatened against or with respect to the Company or any Company Subsidiary in respect of any Taxes or Tax Returns, and (ii) are no requests for rulings or determinations in respect of any Taxes or Tax Returns pending between the Company or any Company Subsidiary and any authority responsible for such TaxesTaxes or Tax Returns.
(c) There are The federal income Tax Returns of the Company and the Company Subsidiaries have never been examined by the Internal Revenue Service (or the applicable statutes of limitation for the assessment of federal income Taxes for such periods have expired) for any period, and no Liens for material deficiencies were asserted as a result of such or any other examinations that have not been resolved and fully paid. Neither the Company nor any of the Company Subsidiaries has granted any requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any Taxes (other than Permitted Liens) upon the property or assets with respect to any Tax Returns of the Company or any of its the Company Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax claim has been asserted made and, to the knowledge of the Company, no claim has been threatened by a Taxing Authority in writing or assessed by any Governmental Authority against a jurisdiction where the Company or any a Company Subsidiary, as the case may be, does not file Tax Returns in respect of its Subsidiaries a particular type of Tax or pay or remit such type of Tax that remains unresolved the Company or unpaida Company Subsidiary is required to file such Tax Returns or pay or remit such type of Tax.
(e) There is no material Tax audit The Merger will not trigger any income or other examination gain to the Company or any Company Subsidiary for federal income tax purposes (i) that was previously deferred pursuant to the regulations issued under Section 1502 of the Code or (ii) under Section 355(e) of the Code in respect of a distribution by the Company or any Company Subsidiary occurring prior to the Closing.
(f) None of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company Subsidiaries has been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any of its Subsidiaries been notified in writing of any request similar affiliated or threat consolidated group for such an audit tax purposes under state, local or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement foreign law (other than a group the common parent of which is the Company), or has any such agreement solely between liability for the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its the Company Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or law, as a transferee or successor successor, by contract or by Contract otherwise.
(other than customary commercial Contracts g) There are no material adjustments under Section 481 of the Code (or Contracts entered into in the ordinary course similar or analogous provision of businessstate, local or foreign law) not primarily related for income tax purposes applicable to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is required to be made by the Company or any of its the Company Subsidiaries.
(h) The Company is not, and has not been during the five-year period ending on the date hereof, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code.
(i) Within There are no Liens on any of the past three (3) years, no written claim has been made by any Governmental Authority where assets or properties of the Company or any of its Subsidiaries does not file Tax Returns Company Subsidiary that it is arose in connection with any failure (or may be subject alleged failure) to taxation in that jurisdictionpay or remit any Tax.
(j) Neither the Company nor any of its Subsidiaries Company Subsidiary has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations §1.6011-4(b)(2)4(c)(3)(i)(A) or failed to report any “reportable transaction.”
(k) The Except as set forth in Section 3.13(k) of the Company has Disclosure Letter, the Company is not beencurrently subject to any limitation on the use of net operating losses, is not, and immediately prior capital losses or other tax attributes pursuant to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) section 382 or 383 of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
Taxes. (a) All The Seller has filed all material Tax Returns required to be filed by or with respect to on behalf of the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all Seller and such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all . The Seller is not currently the beneficiary of any extension of time within which to file any material Taxes due and payable (whether or not shown on any Tax Return) have been paidReturn other than extensions of time to file Tax Returns obtained in the ordinary course of business.
(b) The Company Seller has paid all Taxes due and each of its Subsidiaries have payable by the Seller and deducted, withheld, collected and timely paid to the appropriate Taxing Authority all Taxes required to be deducted, withheld, collected or paid, including sales and use Taxes and amounts required to be withheld from or collected in connection with amounts paid or owing to any employee, creditor independent contractor, creditor, member or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesthird party.
(c) There None of the Purchased Assets are no Liens for Taxes (subject to any Lien arising in connection with any failure or alleged failure to pay any Tax, other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company Seller, nor any of its Subsidiaries has made a request for or entered into a closing agreementthe Purchased Assets, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither is currently the Company nor any of its Subsidiaries has made a change subject of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification Proceeding, and no such Tax Proceeding has been threatened or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into contemplated in the ordinary course of business) writing. The Seller has not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within received within the past three (3) yearsyears any written notice of deficiency, no written claim has been made by notice of assessment or reassessment, or proposed adjustment regarding any Governmental Authority where Asset Taxes the Company payment of which is currently outstanding in whole or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionpart.
(je) Neither No waiver or extension of any statute of limitation as to any Taxes of the Company nor Seller, or with respect to any Purchased Assets, is currently in effect and there is no pending request for any such waiver or extension by any Taxing Authority. The Seller has not granted in writing any power of its Subsidiaries has participated attorney which is currently in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2)force with respect to any Asset Taxes.
(kf) The Company has Seller is not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companyforeign person” within the meaning of Section 368(a)(2)(F1.1445-2 of the Treasury Regulations.
(g) None of the Purchased Assets are (i) required to be treated as being owned by another person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, (ii) subject to Section 168(g)(1)(A) of the Code, (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code, or (iv) tax-exempt use property within the meaning of Section 168(h) of the Code.
(lh) Except as contemplated by this Agreement and The Seller has not (i) been a party to or participated in a transaction that is a “reportable transaction,” within the Transactions contemplated hereby, neither the Company nor any meaning of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge Section 6707A(c)(1) of the Company Code and/or Section 1.6011-4(b) of the Treasury Regulations, (ii) received a request or claim from any Taxing Authority in a jurisdiction in which the Seller does not file Tax Returns that the Seller is or may be liable for Taxes in such jurisdiction, or (iii) received or requested any letter ruling from any Taxing Authority regarding Taxes or entered into any “closing agreement” affecting the Purchased Assets within the meaning of its Subsidiaries are there Section 7121 of the Code (or applicable or analogous state Law) with any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentTaxing Authority.
Appears in 2 contracts
Sources: Asset Purchase Agreement (H2o America), Asset Purchase Agreement (H2o America)
Taxes. (a) (i) All material Tax Returns required to be filed (taking into account extensions of time for filing) by the Company or any of its Subsidiaries have been timely filed; (ii) all material Taxes that are due and payable by the Company or any of its Subsidiaries have been timely paid in full; and (iii) all material withholding Tax requirements imposed on or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete satisfied in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paidfull.
(b) The There is not in force any waiver or agreement for any extension of time for the assessment or payment of any material Tax by the Company or any of its Subsidiaries, and there is no pending audit, examination or other proceeding (and the Company and each of its Subsidiaries have withheld from amounts owing to not received notice in writing of any employeeproposed or threatened audit, creditor examination or other Person all proceeding) relating to the assessment or collection of any material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of due from the Company or any of its Subsidiaries.
(c) No material power of attorney that is currently in force has been granted with respect to Taxes that could affect the Company or any of its Subsidiaries after the Closing.
(d) No There is no outstanding material claim, assessment, assessment or deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries for any Taxes that remains unresolved has been asserted or unpaid.
(e) There is threatened in writing by any Governmental Entity, and no material Tax audit or other examination of written claim has been made, within the preceding three years, by a Governmental Entity in a jurisdiction where the Company or any of its Subsidiaries presently does not file Tax Returns or pay Taxes that it is obligated to file Tax Returns or pay Taxes in progress with respect to any material Taxes, nor has such jurisdiction.
(e) Neither the Company or nor any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect (i) is a party to any material agreement or arrangement relating to the apportionment, sharing, assignment or allocation of Taxes (not including, for the avoidance of doubt (y) an agreement or arrangement solely among the members of a group the common parent of which is the Company or any of its Subsidiaries, or (z) any Tax sharing or indemnification provisions contained in any agreement entered into in the ordinary course of business and not primarily relating to Tax (e.g., leases, credit agreements or other commercial agreements)), (ii) will be required to include any material item of income in, or exclude any material item of deduction from, taxable income following the Closing Date as a result of the application of an accounting method (e.g., the installment sale or completed contract method of accounting) or a change in accounting method, or (ii) has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries has made participated, or is currently participating, in a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes“listed transaction” as defined in Treasury Regulations Section 1.6011-4(b).
(g) Neither the Company nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (or a successor thereto) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code that is a party reasonably likely to any result in the imposition of Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between on the Company and or any of its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in under Section 355(e) of the ordinary course Code as a result of business) not primarily related to Taxes)the Transactions.
(h) Neither After reasonable diligence, neither the Company nor any of its Subsidiaries (i) is liable for Taxes aware of the existence of any other Person (other than fact, or has taken or agreed to take any action, that would prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or Merger from qualifying as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in “reorganization” within the ordinary course meaning of businessSection 368(a) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Code. Neither the Company nor any of its Subsidiaries has participated in knowledge of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment companyreorganization” within the meaning of Section 368(a)(2)(F368(a) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Range Resources Corp), Merger Agreement (Memorial Resource Development Corp.)
Taxes. (a) (i) All income and other material Tax Returns that are required to be filed by or with respect to the Company or any of and its Subsidiaries have been timely filed (taking into account any applicable extensionsextensions of time for filing), all ; (ii) each such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, ; and (iii) all material Taxes owed by the Company or for which the Company is liable that are or have become due and payable (whether or not shown on any Tax Return) have been paidpaid in full.
(b) The All Tax withholding and deposit requirements imposed on or with respect to the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied satisfied in all material respects respects, and the Company and its Subsidiaries have complied with all applicable withholding information reporting (and related reporting withholding) and record retention requirements with respect to such Taxesin all material respects.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreementwritten agreement waiving or extending any statute of limitations in respect of any material Taxes.
(d) No Taxing Authority has asserted, private letter rulingproposed or, advance tax ruling to the Company’s knowledge, threatened any assessment, deficiency or similar agreement with any Governmental Authority adjustment with respect to Taxes. Neither any material Taxes or material Tax Returns of the Company or its Subsidiaries.
(e) No written claim or nexus inquiry has been made by a Taxing Authority in a jurisdiction where neither the Company nor any of its Subsidiaries has made a change file Tax Returns that the Company or one of any method its Subsidiaries is or may be subject to taxation by such jurisdiction.
(f) No claim, audit, action, suit, proceeding, examination or investigation is being conducted, pending or, to the knowledge of accounting the Company, threatened with respect to the Company or its Subsidiaries in respect of any Taxesmaterial Tax.
(g) Neither the Company nor any of its Subsidiaries is has been a party to any member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or non-U.S. income Tax indemnification or Tax sharing or similar Tax agreement Return (other than any such agreement solely between a group of which the Company is the common parent), and neither the Company nor any of its existing Subsidiaries and customary commercial Contracts has any liability for the Taxes of any Person other than the Company or any of its Subsidiaries under Treasury Regulations Section 1.1502-6 (or Contracts entered into in the ordinary course any similar provision of businessstate, local, or non-U.S. income Tax law) not primarily related to Taxes)or as a transferee or successor.
(h) Neither the Company nor any of its Subsidiaries has participated or engaged in any transaction that constitutes a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(i) Neither the Company nor any of its Subsidiaries was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a transaction intended to be governed in whole or in part by Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) as part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(j) There are no Liens for material Taxes on any of the assets of the Company or its Subsidiaries other than Permitted Liens.
(k) Neither the Company nor any of its Subsidiaries is liable for Taxes of a party to or bound by any other Person Tax allocation, sharing or indemnity agreements or arrangements (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 any commercial agreements or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts contracts entered into in the ordinary course of business) business and that are not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries).
(il) Within the past three (3) years, no written claim has been made by any Governmental Authority where Neither the Company or nor any of its Subsidiaries does not file Tax Returns that it is or may be subject a party to taxation in that jurisdictiona tax receivable agreement.
(jm) Neither the Company nor any of its Subsidiaries has participated taken advantage of any Applicable Law enacted in a “listed transaction” within connection with COVID-19 that has the meaning result of Treasury Regulation 1.6011-4(b)(2).
temporarily reducing (kor temporarily delaying the due date of) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge payment obligation of the Company or any of its Subsidiaries are there to any facts Taxing Authority (including any payroll Taxes deferred pursuant to the CARES Act or circumstancesany similar provision of Applicable Law).
(n) The Company is and has been since formation, that could reasonably be expected properly classified as a corporation for U.S. federal income tax purposes.
(o) Section 3.21(o) of the Company Disclosure Schedule sets forth the U.S. federal income tax classification of each Subsidiary of the Company and the jurisdiction in which each Subsidiary of the Company is formed. Notwithstanding any other provisions of this Agreement, the representations and warranties in Section 3.18 (to prevent the Transactions from qualifying for extent relating to Tax matters), Section 3.19 (to the Intended extent relating to Tax Treatmentmatters), this Section 3.21 and Section 3.22 constitute the sole and exclusive representations and warranties made by the Company with respect to Tax matters.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Taxes. (a) All material Tax Returns required to be filed (taking into account extensions of time for filing) by or with respect to the Company Parent or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, and all . All material Taxes that are due and payable by Parent or any of its Subsidiaries (whether or not shown on any Tax Returnother than Taxes being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in accordance with GAAP) have been paid.
(b) The Company and each paid in full. All material withholding Tax requirements imposed on or with respect to Parent or any of its Subsidiaries have withheld from amounts owing to any employeebeen satisfied in full, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to and Parent and its Subsidiaries have been so paid over and complied in all material respects with all applicable withholding information reporting (and related reporting requirements with respect to such Taxeswithholding) and record retention requirements.
(cb) There are no Liens is not in force any waiver or agreement for Taxes (other than Permitted Liens) upon any extension of time for the property assessment or assets payment of the Company any material Tax by Parent or any of its Subsidiaries.
(dc) No There is no outstanding material claim, assessment, assessment or deficiency against Parent or proposed adjustment any of its Subsidiaries for any material amount of Tax Taxes that has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) Entity. There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waiversproceedings pending or, extensions or written requests for any waivers or extensions to the knowledge of any statute of limitations currently in effect with respect to Parent, threatened regarding any material Taxes of Parent and its Subsidiaries or the Company or any assets of Parent and its Subsidiaries.
(fd) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company Parent nor any of its Subsidiaries is a party to any material Tax indemnification allocation, sharing or indemnity contract or arrangement (not including, for the avoidance of doubt (i) an agreement or arrangement solely among the members of a group the common parent of which is Parent or any of its Subsidiaries, or (ii) any Tax sharing or similar Tax indemnification provisions contained in any agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) business and not primarily related relating to TaxesTax).
(h) . Neither the Company Parent nor any of its Subsidiaries (i) is liable has any material liability for Taxes of any other Person (other than the Company and Parent or any of its Subsidiaries) under Treasury Regulation Section Regulations § 1.1502-6 (or any similar provision of state, local or foreign Tax Law Law) or as a transferee or successor by contract or by Contract under applicable Law.
(other than customary commercial Contracts e) Neither Parent nor any of its Subsidiaries has participated, or is currently participating, in a reportable transaction within the meaning of Section 6707A of the Code and Treasury Regulations § 1.6011-4(b) or a transaction that is substantially similar to a listed transaction as defined in Section 6707A of the Code and Treasury Regulations § 1.6011-4(b)(2).
(f) Neither Parent nor any of its Subsidiaries has constituted a “distributing corporation” or Contracts entered into a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (i) in the ordinary course two years prior to the date of business) not primarily related to Taxes) this Agreement or (ii) has ever been as part of a member “plan” or “series of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group related transactions” (within the common parent meaning of which was or is Section 355(e) of the Company or any of its SubsidiariesCode) in conjunction with the Transactions.
(ig) Within the past three (3) years, no No written claim has been made by any Governmental Taxing Authority in a jurisdiction where the Company Parent or any of its Subsidiaries does not currently file a Tax Returns Return that it is or may be subject to taxation any material Tax in that such jurisdiction, nor has any such assertion been proposed in writing or, to the knowledge of Parent, threatened.
(h) Parent has made available to Parent complete and correct copies of any private letter ruling requests, closing agreements or gain recognition agreements with respect to Taxes which has been requested or will remain in effect as of the Closing.
(i) There are no Encumbrances for material Taxes on any of the assets of Parent or any of its Subsidiaries, except for Permitted Encumbrances.
(j) Neither the Company Parent nor any of its Subsidiaries has participated will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a “listed transaction” within result of any closing agreement under Section 7121 of the meaning Code (or any corresponding or similar provision of Treasury Regulation 1.6011-4(b)(2state, local or foreign law), installment sale under Section 453 of the Code (or any corresponding or similar provision of state, local or foreign Law) or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority under Section 481 of the Code (or any corresponding or similar provision of state, local or foreign Law), any prepaid amount received on or prior to the Closing Date, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of Law with respect to Taxes), or any election pursuant to Section 108(i) of the Code (or any similar provision of Law) made with respect to any taxable period ending on or prior to the Closing Date.
(k) The Company has not been, Neither Parent nor any of its Subsidiaries is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companyU.S. shareholder” (within the meaning of Section 368(a)(2)(F951(b) of the Code) of any foreign corporation which may be required to include in income any amounts under Section 951(a) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company Neither Parent nor any of its Subsidiaries is aware of the existence of any fact, or has taken any action or agreed to take any action, nor to that would prevent the knowledge Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Company Code.
(m) Each of Parent and Merger Sub is, and has been since formation, properly classified for United States federal income tax purposes as a corporation.
(n) No rulings, requests for rulings or closing agreements (as described in Section 7121 of the Code or comparable provisions of state or local Tax laws) have been entered into with or issued by, or are pending with, any Taxing Authority with respect to Parent or any of its Subsidiaries.
(o) Neither Parent nor any of its Subsidiaries are there has been required to disclose on its federal income Tax Returns any facts or circumstances, position that could reasonably be expected give rise to prevent a substantial understatement of federal income tax within the Transactions from qualifying meaning of Section 6662 of the Code.
(p) The unpaid Taxes of Parent and its Subsidiaries (i) did not, as of the Parent’s latest balance sheet filed with the SEC, materially exceed the current liability accruals for Taxes (excluding any reserves for deferred Taxes established to reflect timing differences between book and Tax income) set forth in such balance sheet and (ii) do not materially exceed such current liability accruals for Taxes (excluding reserves for deferred Taxes established to reflect timing differences between book and Tax income) as adjusted for the Intended passage of time through the Closing Date in accordance with the past custom and practice of Parent and Subsidiaries in filing their respective Tax TreatmentReturns.
Appears in 2 contracts
Sources: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)
Taxes. (a) All The Company and the Company Subsidiaries (i) have timely filed (taking into account any extension of time to file granted or obtained) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all them and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and (ii) have timely paid all material amounts of Taxes due and payable required to be paid by them (whether or not shown as due on any Tax Return) ), except to the extent that such Taxes are being contested in good faith in appropriate proceedings and for which the Company or the appropriate Company Subsidiary has set aside adequate reserves in accordance with GAAP. All material amounts of Taxes, whether individually or in the aggregate, required to have been paidwithheld by the Company and the Company Subsidiaries with respect to amounts paid or owing to any employee, independent contractor, creditor or other third party have been timely withheld and remitted to the applicable Governmental Authority.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeThere are no pending audits, creditor examinations, investigations, refund litigation, proposed adjustments or other Person all material Taxes required proceedings by applicable Law to be withheld, paid over to the proper a Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all respect of any material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets Tax Returns of the Company or any of its the Company Subsidiaries.
(d) , and no such audits, examinations, investigations, refund litigation, proposed adjustments or other proceedings have been proposed in writing. No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority in writing against the Company or any of its Subsidiaries that remains unresolved the Company Subsidiaries, which deficiency has not been satisfied by payment, settled or unpaid.
(e) been withdrawn or is not being contested in good faith in appropriate proceedings and for which the Company or the appropriate Company Subsidiary has set aside adequate reserves in accordance with GAAP. There is are no Liens for a material Tax audit or other examination amount of Taxes on any of the assets of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiariesthan Permitted Liens.
(fc) Neither the Company nor any of its the Company Subsidiaries has made a request any liability for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any Taxes of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries another person (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law or as a transferee or successor or non-U.S. law) by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course reason of business) not primarily related to Taxes) or (ii) has ever been being a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, (other than a group the common parent of which was or is that solely includes the Company and/or any of the Company Subsidiaries) or (ii) by reason of being party to any Tax sharing, Tax allocation, or Tax indemnification agreement or other similar agreement (other than customary Tax indemnification provisions in commercial agreements or arrangements, in each case not primarily relating to Taxes and entered into in the ordinary course of business, or any of its agreement solely between or among the Company and the Company Subsidiaries).
(id) Within Neither of the past three (3) years, no Company nor any of the Company Subsidiaries has received written notice of any claim has been made by any a Governmental Authority in a jurisdiction where the Company or any of its the Company Subsidiaries does not file a Tax Returns Return, which claim has not been resolved prior to the date hereof, that it the Company or any of the Company Subsidiaries is or may be subject to taxation in by that jurisdiction. There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or material Tax deficiencies against the Company or any of the Company Subsidiaries other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business.
(je) Neither the Company nor any of its the Company Subsidiaries was a “distributing corporation” or “controlled corporation” in a transaction intended to qualify under Section 355 of the Code within the past two years.
(f) Neither the Company nor any of the Company Subsidiaries has participated in a any “listed reportable transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F6707A(c)(1) of the Code, Treasury Regulation Section 1.6011-4 or any similar provision of state or local Law.
(lg) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its the Company Subsidiaries has taken will be required to include any action item of income in, or agreed to take exclude any actionitem of deduction from, nor to taxable income for any taxable period (or portion thereof) ending after the knowledge Effective Time as a result of Section 481(a) or Section 453 of the Company Code (or any similar provisions of its Subsidiaries are there any facts state, local, or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmentnon-U.S. Law).
(h) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Danaher Corp /De/), Merger Agreement (Pall Corp)
Taxes. (a) All material Tax Returns required to be filed by or with respect to the Company Acquiror or any of its Subsidiaries Merger Sub have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid, other than Taxes being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(b) The Company Acquiror and each of its Subsidiaries Merger Sub have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesrequirements.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Acquiror or any of its SubsidiariesMerger Sub.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company Acquiror or any of its Subsidiaries Merger Sub that remains unresolved or unpaidunpaid except for claims, assessments, deficiencies or proposed adjustments being contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(e) There is are no material Tax audit audits or other examination examinations of the Company or any of its Subsidiaries Acquiror presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examinationprogress, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company Acquiror or any of its SubsidiariesMerger Sub.
(f) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub has made a request for or entered into a closing agreement, private letter an advance tax ruling, advance tax ruling request for technical advice, a request for a change of any method of accounting or any similar agreement request that is in progress or pending with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made Taxes that would reasonably be expected to be material to Acquiror and Merger Sub, taken as a change of any method of accounting with respect to any Taxeswhole.
(g) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries Acquiror and/or Merger Sub and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company Acquiror nor Merger Sub has been a party to any transaction treated by the parties as a distribution of its Subsidiaries stock qualifying for Tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(i) Neither the Acquiror nor Merger Sub (i) is liable for Taxes of any other Person (other than the Company and its SubsidiariesAcquiror or Merger Sub) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(ij) Within the past three (3) years, no No written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries Acquiror does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jk) The Acquiror has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(l) The Acquiror has never had a permanent establishment in any country other than the country of its organization, nor is, or has ever been, subject to income Tax in a jurisdiction outside the country of its organization.
(m) Neither the Company Acquiror nor any of its Subsidiaries Merger Sub has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kn) The Company has not beenNeither the Acquiror nor Merger Sub will be required to include any material amount in taxable income, is notexclude any material item of deduction or loss from taxable income, and immediately or make any adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) installment sale, excess loss account or deferred intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Law) or open transaction disposition made prior to the Share Exchange Closing, (ii) prepaid amount received or deferred revenue recognized prior to the Closing, (iii) change in method of accounting for a taxable period ending on or prior to the Closing will not beDate, treated (iv) “closing agreement” as an “investment company” within described in Section 7121 of the meaning Code (or any similar provision of state, local or foreign Law) executed prior to the Closing, or (v) by reason of Section 368(a)(2)(F965(a) of the CodeCode or election pursuant to Section 965(h) of the Code (or any similar provision of state, local or foreign Law), and to the knowledge of Acquiror, the IRS has not proposed any such adjustment or change in accounting method.
(lo) Except The Acquiror is and always has been properly classified as contemplated by this Agreement a domestic corporation taxable under subchapter C of the Code for U.S. federal income Tax purposes and has had comparable status under the Transactions contemplated hereby, neither Laws of any other jurisdiction in which it was required to file any Tax Return at the Company nor any of its Subsidiaries has time it was required to file such Tax Return.
(p) Acquiror and ▇▇▇▇▇▇ Sub have not taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries Acquiror are there any facts or circumstances, that could would reasonably be expected to prevent the Transactions Merger from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code and the Treasury Regulations.
Appears in 2 contracts
Sources: Merger Agreement (Welsbach Technology Metals Acquisition Corp.), Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) timely filed all income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property material federal, state, local or assets foreign audits or examinations of any Tax Return of the Company or its Subsidiaries ongoing or pending and neither the Company nor any Subsidiary has received written notice of its Subsidiaries.
(d) any such material audit or examination. No claim, assessment, deficiency or proposed adjustment claim for any material amount of Tax unpaid Taxes has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesby a Governmental Entity, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) claim that has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written resolved. No claim has been made in writing by any a Governmental Authority Entity in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(jc) The Company and each of its Subsidiaries have withheld all Taxes required to have been withheld from payments made to its employees, independent contractors, creditors, stockholders and other third parties and, to the extent required, such Taxes have been paid to the relevant Governmental Entity.
(d) There are no outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or material deficiencies against the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of material Taxes, except for any such agreements that (i) are solely between the Company and/or any of its Subsidiaries, (ii) will terminate as of the Closing, or (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes.
(f) There are no material Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Reports, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith and for which adequate reserves have been established on the Company Balance Sheet.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (A) is or has been in the past five (5) years a member of a group (other than a group the common parent of which is the Company or one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return, or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law, as a transferee or successor, or pursuant to any contractual obligation of the sort described in Section 5.13(e).
(i) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(j) The U.S. federal income tax entity classification of each Subsidiary of the Company not organized within the United States is set forth on Section 5.13(j) of the Company Disclosure Schedule.
(k) The Company has not beenand each of its Subsidiaries are in compliance in all material respects with all terms and conditions of any Tax exemption, is notTax holiday or other Tax reduction agreement or order (“Tax Incentive”), and immediately prior to the Share Exchange Closing consummation of the transactions contemplated by this Agreement will not be, treated as an “investment company” within have any adverse effect on the meaning continued validity and effectiveness of Section 368(a)(2)(F) of the Codeany such Tax Incentive.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action or agreed to take knows of any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, fact that could be reasonably be expected to prevent the Transactions Offer and the Merger, taken together, from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass Inc)
Taxes. (a) All Each of the Company and its Subsidiaries has prepared and timely filed (taking into account any valid extensions of time) all material Tax Returns required to be filed by relating to any and all Taxes concerning or with respect attributable to the Company or Company, any of its Subsidiaries have been timely filed (taking into account any applicable extensions)or their respective operations, all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, respects are true and all material Taxes due correct and payable (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable Law.
(b) The Each of the Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person has (i) timely paid all material Taxes it is required by applicable Law to be withheldpay, and (ii) timely withheld and paid over to the proper appropriate Governmental Authority in a timely manner all such withheld amounts material federal and state income Taxes, Federal Insurance Contribution Act and Federal Unemployment Tax Act amounts, and other material Taxes (including, but not limited to, all Taxes required to have been so paid over be reported and complied in all material respects with all applicable withholding withheld on any U.S. or non-U.S. stock options) required to be withheld and related reporting requirements with respect to such Taxespaid.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of Neither the Company or nor any of its SubsidiariesSubsidiaries had any Liabilities for material unpaid Taxes as of the date of the Balance Sheet that had not been accrued or reserved on the Balance Sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any Liability for Taxes since the date of the Balance Sheet other than in the ordinary course of business consistent with past practice.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against Neither the Company or nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations on or extension of the period for the assessment or collection of any income or other material Tax that remains unresolved or unpaidis still in effect.
(e) There is no material Tax No audit or other examination of any income or other material Tax Return of the Company or any of its Subsidiaries is presently in progress with respect to any material Taxesprogress, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there . No material adjustment relating to any Tax Return filed by the Company has been proposed in writing by any Governmental Authority. No Governmental Authority has notified the Company or any of its Subsidiaries that it is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns.
(f) There are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes Liens on the assets of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for relating or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect attributable to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes, other than Permitted Liens.
(g) Neither the Company nor any of its Subsidiaries has (i) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which was or is the Company), (ii) ever been a party to any Tax sharing, indemnification or Tax sharing or similar Tax allocation agreement (other than any such agreement solely between the Company and its existing Subsidiaries and pursuant to customary commercial Contracts (or Contracts entered into in the ordinary course of business) contracts not primarily related to Taxes), nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (iii) any Liability for the Taxes of any person under Treas. Reg. § 1.1502-6 (or any similar provision of other applicable Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by contract, by operation of law or otherwise and (iv) ever been a party to any joint venture, partnership or other agreement that is treated as a partnership for Tax purposes.
(h) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deductions or loss from Taxable income for any period or portion thereof after the Effective Time as a result of any (i) is liable for Taxes change in method of any other Person accounting made prior to the Effective Time, (other than ii) closing agreement under Section 7121 of the Company Code entered into prior to the Effective Time, (iii) deferred intercompany gain or excess loss account under Section 1502 of the Code attributable to transactions occurring prior to the Effective Time (or in the case of clauses (i). (ii) and its Subsidiaries(iii) above, under Treasury Regulation Section 1.1502-6 or any similar provision of stateapplicable Law), local (iv) installment sale or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in open transaction disposition made prior to the ordinary course of business) not primarily related to Taxes) Effective Time or (iiv) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group prepaid amount received prior to the common parent of which was or is the Company or any of its SubsidiariesEffective Time.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated 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 in the last two (2) years or that could otherwise constitute part of a “listed transactionplan” or series of related transactions (within the meaning of Treasury Regulation Section 355(e) of the Code) in connection with the Merger.
(j) The Company has not engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b), including any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken is subject to Tax in any action country other than its country of incorporation or agreed formation by virtue of having a permanent establishment or other place of business in that country.
(l) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating its transfer pricing practices and methodology. The prices for any property or services (or for the use of any property) provided by or to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there arm’s length prices for purposes of the relevant transfer pricing Law, including Treasury Regulations promulgated under Section 482 of the Code.
(m) There is no Contract to which the Company or any facts of its subsidiaries is a party, including the provisions of this Agreement, covering any employee, consultant or circumstancesdirector of the Company or any of its Subsidiaries, which, individually or collectively, could give rise to the payment of any amount that could reasonably would not be expected deductible pursuant to prevent Sections 404 or 162(m) of the Transactions from qualifying Code. Each Employee Plan which is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered in operational and documentary compliance with the requirements of Section 409A of the Code. No stock option or other right to acquire Company Common Stock or other equity of the Company (i) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted, as determined by the plan administrator of the applicable Company Plan in good faith, (ii) has any feature for the Intended deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights, or (iii) has been granted after December 31, 2004, with respect to any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A). Neither the Company, any Subsidiary nor any ERISA Affiliate is a party to any Contract which would require the payment to any current or former employee, consultant or director of an amount necessary to “gross-up” such individual for any penalty tax under Section 409A of the Code.
(n) The Company and its Subsidiaries have identified all uncertain tax positions contained in all Tax TreatmentReturns filed by the Company and/or its Subsidiaries and have established adequate reserves and made any appropriate disclosures in the financial statements in accordance with the requirements of ASC 740-10.
(o) The Company has made available to Parent or its legal counsel or accountants copies of all Tax Returns, letter rulings, technical advice memoranda and similar documents issued since January 1, 2009 by a Governmental Authority relating to income or other material Taxes due from or with respect to the Company or any of its Subsidiaries and all ASC 740-10 work papers of the Company and each of its Subsidiaries for all periods since January 1, 2009.
(p) The Company is not nor has been during the five-year period ending on the Closing Date, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Market Leader, Inc.)
Taxes. (a) All The Company and each of its Subsidiaries have (i) timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (i) or clause (ii) hereof, with respect to matters contested in good faith or for which adequate reserves have been paidestablished in accordance with GAAP.
(b) The Company and each As of its Subsidiaries have withheld from amounts owing to any employeethe date of this Agreement, creditor there are no pending or ongoing audits, examinations, investigations or other Person all material Taxes required Proceedings by applicable Law to be withheld, paid over to the proper any Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements respect of Taxes of or with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(dc) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against All Taxes that the Company or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other Third Parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fd) Neither the Company nor any of its Subsidiaries has made ever been a request for member of a consolidated, combined or entered into unitary Tax group (other than such a closing agreement, private letter ruling, advance tax ruling group the common parent of which is the Company or similar agreement with any Governmental Authority with respect to Taxes. of its Subsidiaries).
(e) Neither the Company nor any of its Subsidiaries has made is a change party to or is bound by any Tax sharing, Tax allocation or Tax indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries and certain Portfolio Companies or customary commercial Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not be terminated on or before the Closing Date without any method future liability to the Company or its Subsidiaries.
(f) There are no Liens for Taxes on any of accounting with respect to the assets of the Company or any Taxesof its Subsidiaries other than Permitted Liens.
(g) Neither the Company nor any of its Subsidiaries is has participated in or been a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between a transaction that, as of the Company date of this Agreement, constitutes a “listed transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)applicable Treasury Regulations thereunder.
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes has taken any action or knows of any other Person (other than fact that would reasonably be expected to prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Mergers from qualifying for the Intended Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesTreatment.
(i) Within The Company has made a valid election under Part I of Subchapter M of Subtitle A, Chapter 1, of the past three Code to be taxed as a “regulated investment company” (3a “RIC”). The Company has qualified as a RIC with respect to its first taxable year ending on December 31, 2015, and with respect to each taxable year thereafter (including its taxable year ending on the Effective Time). No challenge to Company’s status as a RIC is pending or has been threatened in writing.
(j) yearsEach Subsidiary of the Company that is a partnership, no written joint venture, or limited liability company has been since its formation treated for United States federal income Tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation.
(k) No claim has been made in writing by any Governmental a Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it the Company or any such Subsidiary is or may be subject to taxation in by that jurisdiction, and which, if upheld, would reasonably result in a material Tax liability.
(jl) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within any liability for the meaning Taxes of another Person other than the Company and its Subsidiaries under Treasury Regulation 1.6011Section 1.1502-4(b)(26 (or any similar provision of state, local or foreign Law), as a transferee, successor or payable pursuant to a contractual obligation.
(km) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated past five years (or otherwise as an part of a “investment companyplan (or series of related transactions)” within the meaning of Section 368(a)(2)(F355(e) of the Code.
(l) Except as contemplated by this Agreement and Code of which the Transactions contemplated herebyMergers are also a part), neither the Company nor any of its Subsidiaries has taken any action been a “distributing corporation” or agreed a “controlled corporation” in a distribution intended to take any action, nor to the knowledge qualify under Section 355(a) of the Code.
(n) Neither the Company or nor any of its Subsidiaries are there any facts has requested a private letter ruling from the IRS or circumstances, that could reasonably be expected to prevent the Transactions comparable rulings from qualifying for the Intended Tax Treatmentother Taxing Authorities.
Appears in 2 contracts
Sources: Merger Agreement (Alcentra Capital Corp), Merger Agreement (Crescent Capital BDC, Inc.)
Taxes. Except as set forth in Section 2.21 of the Disclosure Schedule:
(a) All With respect to each of the Company and its Subsidiaries, (i) all material returns, statements, reports, estimates, declarations and forms with respect to Taxes (as defined in Section 4.6) (collectively, "Tax Returns Returns") required to be filed by on or before the Closing Date have been or will have been, timely filed in accordance with respect any applicable Laws, (ii) all Taxes due and payable pursuant to such Tax Returns (whether or not shown on such returns) have been or will be timely paid, and (iii) all Taxes for which a notice of, or assessment or demand for, payment has been received or which are otherwise due and payable have been paid or accrued on the financial books and records of the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), all Subsidiaries. All such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, . As of the Balance Sheet Date the Company and all its Subsidiaries had no material liability for Taxes due and payable (whether or not shown in excess of the accruals for Taxes reflected on any Tax Return) have been paidthe September 30 Balance Sheet.
(b) With respect to each of the Company and its Subsidiaries, (i) there is no action, suit, proceeding, audit, written claim, Lien (other than Liens for Taxes not yet due and payable or which are being contested in good faith), or assessment pending or proposed with respect to Taxes or with respect to any Tax Return, (ii) all material amounts required to be collected or withheld with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly and timely remitted, (iii) no extension of time within which to file any Tax Return has been requested which Tax Return has not since been filed, (iv) there are no material waivers or extensions of any applicable statute of limitations for the assessment or collection of Taxes with respect to any Tax Return which remain in effect, (v) there are no tax rulings, requests for rulings, applications for change in accounting methods or closing agreements relating to the Company or any of its Subsidiaries which could reasonably be expected to affect its liability for Taxes for any period after the Closing Date, and (vi) none of the Seller, the Company or any of its Subsidiaries has agreed to, or is required to include in income, any adjustment pursuant to Section 481(a) or 482 of the Code (or similar provisions of other Law) (nor has any taxing authority proposed any such adjustment or change of accounting method).
(c) The Company and each of its Subsidiaries have withheld from amounts owing to any employeeis a member of a U.S. consolidated return filing group of which Parent is the common parent. Since 1990, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither neither the Company nor any of its Subsidiaries has made been a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change member of any method of accounting with respect to any Taxes.
(g) other consolidated return group. Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into which will be in the ordinary course of business) not primarily related effect with respect to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionafter the Closing Date.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Stock Purchase Agreement (McLeodusa Inc), Stock Purchase Agreement (McLeodusa Inc)
Taxes. (a) All material Taxes due and payable by the Companies have been paid in full. The liability for Taxes of the Companies reflected in the Financial Statements will be sufficient in all respects to provide for all interest, penalties, assessments or deficiencies, if any, which, as of the date of such Financial Statements, were due and unpaid and the appropriate accrual for other unpaid Taxes not yet due. The Companies have timely filed or had timely filed on their behalf all Tax Returns which they are required to be have filed by or with respect to the Company or any of its Subsidiaries proper extensions have been timely filed (taking into account any applicable extensions), all therefore and such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, provided that this representation and all material warranty shall not be construed as a representation or warranty that any Tax attribute or return position reflected on a Tax Return may be relied upon by any Buyer Indemnified Party with respect to the determination of any liability for Taxes due and payable (whether or not shown to be reflected on any Tax Return) Return filed after the Closing Date. Any deficiencies asserted in writing with respect to any Tax Returns as a result of any audit by a Governmental Body have been paid, settled or are being contested or appealed, and except as provided on Schedule 3.13, none of the Companies has received any written notice of, nor do the Sellers know of, any present disputes as to Taxes payable by any of the Companies. There are no unexpired waivers by any of the Companies of any statute of limitations with respect to any Taxes, and none of the Companies is a party to any action or proceedings by any Governmental Body for the collection or assessment of Taxes. The Companies have complied with all Requirements of Laws relating to the payment and withholding of Taxes (including, without limitation, withholding of payroll and employment Taxes and Taxes pursuant to Sections 1441 and 1442 of the Code or similar provisions under any foreign laws) and has, within the time and manner prescribed by applicable Requirements of Laws, withheld and paid over to the proper governmental authorities all amounts required to be withheld and paid. There are no Encumbrances for Taxes upon the assets or properties of the Companies except for statutory Encumbrances for Taxes not yet due or payable or for Taxes being contested in good faith through appropriate proceedings (which proceedings are listed on Schedule 3.13(a)). None of the Companies has received any written notice of any Tax rulings, requests for rulings, or closing agreements relating to any of the Companies which could materially affect any of the Companies’ liability for Taxes for any period after the Closing Date. None of the Companies will be required to take into income for any period on or after the Closing Date any adjustment under Section 481 of the Code (or any corresponding provision of state or local Tax law) as a result of any change of accounting method for a tax period beginning prior to the Closing Date or required by virtue of the transactions contemplated by this Agreement.
(b) Each of the Companies is not, nor has it been since the later of (i) March 12, 1999 or (ii) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, a member of or included in any affiliated, consolidated, combined, or unitary group for purposes of filing Tax Returns or paying Taxes at any time other than with the Company. The Company Companies do not have any liability for Taxes of any Person under Section 1.1502-6 of the U.S. income tax regulations or as a transferee of such Person or under any other provision of law, and each the Companies are a party to or bound by or have any obligation under any Tax sharing or similar agreement or arrangement. Schedule 3.13 sets forth all countries, states, provinces, cities, and other jurisdictions in which any of its Subsidiaries have withheld the Companies (i) filed Tax Returns at any time during the period beginning from amounts owing the later of (A) March 12, 1999 or (B) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, and (ii) has received written notice during the period beginning from the later of (X) March 13, 1999 or (Y) the date such Subsidiary was, directly or indirectly, formed or acquired by the Company, that claims that any of the Companies is subject to any employee, creditor Tax. Parent is not a “foreign person” within the meaning of Section 1445 of the Code and no withholding Tax will be payable pursuant to Section 1445 or other Person all material Taxes required by applicable Law to be withheld, paid over to provision of the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) Code upon the property or assets consummation of the Company transactions contemplated hereby. The Companies have not participated in or any cooperated with an international boycott within the meaning of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination Section 999 of the Company or Code. Each of the Companies has not received any written notice of its Subsidiaries presently in progress any foreign income Tax rulings with respect to any of the Companies that are material Taxesto the continuing operations of the Company. As a result of compliance with this Agreement, nor has none of the Company Companies will be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G of the Code (or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar corresponding provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into law) without regard to whether such payment is to be made in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiariesfuture.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(kc) The Company has not beenand except as set forth on Schedule 3.17, is notno Subsidiary (and any predecessor of any of the Companies, including any entity merged or liquidated into any of the Companies) has been a validly electing S corporation within the meanings of Sections 1361 and 1362 of the Code since the later of (i) March 12, 1999 or (ii) the date such Subsidiary was directly or indirectly, formed or acquired by the Company. None of the Companies will be an S corporation as of the Closing Date. With respect to the United States and all states which for any of the Companies are being treated as a partnership, all elections for such treatment required to have been made have been properly and validly made in the United States and each of such states, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codesuch Companies have maintained compliance at all times with all applicable qualifications and filing procedures for such treatment.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Global Imaging Systems Inc), Stock Purchase Agreement (Global Imaging Systems Inc)
Taxes. (a) All material The Company and each of its Subsidiaries has duly and timely filed, or caused to be filed (taking into account all applicable permitted extensions), all Tax Returns that it was required to file, and each such Tax Return was true, correct and complete in all material respects when filed. The Company and each of its Subsidiaries has paid, or made adequate provision (which provisions are properly reflected in the Company Financial Statements) for the payment of, all Taxes (whether or not reflected in Tax Returns as filed or due to be filed) due and payable by the Company or any of its Subsidiaries, or claimed to be due and payable by any Regulatory Authority, and is not delinquent in the payment of any Tax, except such Taxes as are being contested in good faith and as to which adequate reserves have been provided and which are reflected on the Company Financial Statements.
(b) There is no claim or assessment pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries with respect to any Taxes due from or owing by any of them or any Tax Return filed or required to be filed by any of them. No audit, examination or investigation related to Taxes paid or payable by the Company and each of its Subsidiaries is presently being conducted or threatened in writing by any Regulatory Authority. Neither the Company nor its Subsidiaries is the beneficiary of any extension of time within which to file any Tax Return, and there are no liens for Taxes (other than Taxes not yet due and payable) upon any of the Company’s or its Subsidiaries’ assets. Neither the Company nor its Subsidiaries has executed an extension or waiver of any statute of limitations on the assessment or collection of any Tax that is currently in effect or executed any power of attorney with respect to any Tax, other than powers of attorney that are no longer in force.
(c) The Company and each of its Subsidiaries has delivered or made available to Acquiror true, correct and complete copies of all Tax Returns relating to income taxes, franchise taxes and all other material Taxes owed by it and all examination reports and statements of deficiencies filed, assessed against or agreed to by it with respect to the last three (3) fiscal years.
(d) None of the Company or any of its Subsidiaries has engaged in any transaction that could materially affect the Tax liability for any Tax Returns not closed by applicable statute of limitations: (i) which is a “reportable transaction” or a “listed transaction” or (ii) a “significant purpose of which is the avoidance or evasion of U.S. federal income tax” within the meaning of Sections 6662, 6662A, 6011, 6111 or 6707A of the Code or of the Treasury Regulations promulgated thereunder or pursuant to notices or other guidance published by the IRS (irrespective of the effective dates).
(e) None of the Company or any of its Subsidiaries have been timely filed (taking into account deferred any applicable extensions)portion of any payroll, all such Tax Returns (taking into account all amendments thereto) are truesocial security, correct and complete in all material respectsunemployment, and all material withholding Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over pursuant to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon CARES Act nor claimed the property or assets “employee retention credit” available under Section 2301 of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesCARES Act.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written No claim has been made in writing by any Governmental Regulatory Authority in any jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is the Company or any of its Subsidiaries, as applicable, is, or may be be, subject to taxation in Tax by that jurisdiction. No private letter rulings or similar rulings have been requested by or with respect to the Company or any of its Subsidiaries, or entered into or issued by any taxing authority with respect to the Company or any of its Subsidiaries.
(jg) The Company and each of its Subsidiaries have complied in all respects with all Legal Requirements relating to the payment and withholding of Taxes and have properly and timely withheld all Taxes required to be withheld by the Company in connection with amounts paid or owing to any employee, former employee, independent contractor, creditor, stockholder, Affiliate, customer, supplier or other Person; and the Company and each of its Subsidiaries have complied with all reporting and record-keeping requirements relating thereto. To the extent required, the Company and each of its Subsidiaries have properly and timely paid all such withheld Taxes to the Regulatory Authority or have properly set aside such withheld amounts in accounts for such purpose.
(h) Neither the Company nor any of its Subsidiaries has participated will be required to include any item of income in, or exclude any item or deduction from, taxable income for any taxable period or portion thereof ending after the Closing Date as a result of:
(i) Any change in a “listed transaction” within method of accounting under Section 481 of the meaning Code (or any comparable provision of Treasury Regulation 1.6011state, local or foreign Tax laws), or use of an improper method of accounting, for a taxable period ending on or prior to the Closing Date;
(ii) An open transaction occurring on or prior to the Closing Date;
(iii) A prepaid amount or advance payments received on or before the Closing Date;
(iv) Any closing agreement under Section 7121 of the Code, or similar provision of state, local or foreign law;
(v) Any election under Section 108(i) of the Code;
(vi) A transaction entered into on or before the Closing Date reported under the installment method of accounting or the long-4(b)(2term contract method of accounting; or
(vii) The application of Section 263A of the Code (or any comparable provision of state, local or foreign Tax laws).
(ki) The Neither the Company nor any of its Subsidiaries (i) is a party to a Tax sharing, Tax allocation or similar agreement; (ii) is or has not beenbeen a member of an affiliated, is notcombined, and immediately prior to consolidated or unitary Tax group for Tax purposes (other than an affiliated group of which the Share Exchange Closing will not beCompany is, treated or was, the common parent); or (iii) otherwise has liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codea transferee or successor, by contract or otherwise.
(lj) Except as contemplated by this Agreement and Within the Transactions contemplated herebypast three (3) years, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any actiondistributed stock of another Person, nor to has the knowledge stock of either the Company or any of its Subsidiaries been distributed by another Person in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(k) Neither the Company’s nor any of its Subsidiaries’ net operating losses are subject to limitation as a result of an “ownership change” within the meaning of Section 382(g) of the Code, other than the ownership change that will occur as a result of the transaction contemplated by this Agreement.
(l) Except as reflected on the Company Financial Statements, there are no charges, accruals or reserves for unpaid Taxes of the Company or any facts Subsidiary that in accordance with GAAP should be shown on such Company Financial Statements. No liability for Taxes has been incurred by the Company or circumstancesany of its Subsidiaries since the most recent Company Financial Statement, that could reasonably other than Taxes resulting from operations in the Ordinary Course of Business.
(m) None of the Company’s or any of its Subsidiary’s “goodwill” or “going concern value” (as such terms are defined in Section 197(d) of the Code) was held or used by such Company or Subsidiary (or any predecessor of the Company or such Subsidiary) or any “related person” (within the meaning of Code Section 197(f)) to the Company or such Subsidiary on or prior to August 10, 1993, and no such asset will be expected subject to prevent the Transactions anti-churning rules of, or otherwise be excluded from qualifying for the Intended Tax Treatmentdefinition of an “amortizable section 197 intangible” (as defined in Code Section 197) as a result of, Code Section 197(f)(9) and the Treasury Regulations promulgated pursuant thereto as a result of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (First Busey Corp /Nv/), Merger Agreement (First Busey Corp /Nv/)
Taxes. (ai) All Company and its Significant Subsidiary have each timely filed all material federal, state, local and foreign Tax Returns (as defined in this Section 4.1(k)) required to be filed by it, or on its behalf, for taxable years or other taxable periods ending on or prior to the Offer Completion Date, taking into account any applicable extensions, and all such Tax Returns are correct and complete in all respects material to Company and its subsidiaries, taken as a whole.
(ii) All Taxes and Tax liabilities material to Company and its subsidiaries, taken as a whole, and due by or with respect to the income, assets or operations of Company and its Significant Subsidiary for all taxable years or other taxable periods that end on or before the Offer Completion Date and, with respect to any taxable year or other taxable period beginning on or before and ending after the Offer Completion Date, the portion of its Subsidiaries such taxable year or period ending on and including the Offer Completion Date, have been timely filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, correct and complete paid or will be timely paid in all material respects, and all material Taxes due and payable (whether full on or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over prior to the proper Governmental Authority Offer Completion Date or accrued and adequately disclosed and fully provided for in a timely manner all such withheld amounts the SEC Reports to the extent and only to the extent required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesperiods or portions thereof in accordance with GAAP.
(ciii) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the date of this Agreement, neither Company or nor its Significant Subsidiary (A) has any knowledge of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax pending audit or other examination of Taxes by the Company tax authorities of any nation, state or locality or (B) has received any of its Subsidiaries presently in progress with respect written notice from any taxing authority relating to any issue that could affect the Tax liability of Company and/or its Significant Subsidiary in a manner material Taxesto Company and its subsidiaries, taken as a whole.
(iv) As of the date of this Agreement, neither Company nor its Significant Subsidiary (A) has the Company entered into an agreement or any of its Subsidiaries waiver or been notified requested in writing of any request to enter into an agreement or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of waiver extending any statute of limitations currently relating to the payment or collection of Taxes of Company or its Significant Subsidiary that has not expired or (B) is presently contesting the Tax liability of Company or its Significant Subsidiary before any court, tribunal or agency.
(v) Neither Company nor its Significant Subsidiary has been included in effect any "consolidated," "unitary" or "combined" Tax Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any material Taxes taxable period for which the statute of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company limitations has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Codeexpired.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Associated Materials Inc), Merger Agreement (AMH Holdings, Inc.)
Taxes. (a) All Each of the Company and its Subsidiaries has duly and timely filed all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions)it, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, .
(b) Each of the Company and its Subsidiaries has timely paid all material Taxes due and payable required to be paid by it (whether or not shown due on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes).
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets Except as would not have a Material Adverse Effect, each of the Company or any and its Subsidiaries has made adequate provision in the financial statements of the Company (in accordance with GAAP) for all Taxes of the Company and its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment for any material amount Each of Tax has been asserted in writing or assessed by any Governmental Authority against the Company or any of and its Subsidiaries that remains unresolved or unpaidhas complied, in all material respects, with all applicable Laws relating to the payment and withholding of Taxes and has, within the time and manner prescribed by Law, withheld and paid over to the proper tax authorities all amounts required to be withheld and paid over by it.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for received written notice of any pending or entered into a closing agreementthreatened audit, private letter rulingproceeding, advance tax ruling examination or litigation or similar agreement with any Governmental Authority claim that has been commenced or is presently pending with respect to Taxes. Neither any material Taxes or material Tax Return of the Company nor or any of its Subsidiaries for which the Company has not made adequate provisions (in accordance with GAAP) in its financial statements.
(f) No written claim has been made by any tax authority in a change jurisdiction where any of the Company or its Subsidiaries does not file a Tax Return that the Company or any method of accounting with respect its Subsidiaries is or may be subject to any Taxestaxation in that jurisdiction.
(g) Neither No material deficiency with respect to any Taxes has been proposed, asserted or assessed against the Company nor or any of its Subsidiaries, and no requests for waivers of the time to assess any material amount of Taxes are pending.
(h) There are no outstanding written agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or deficiencies against the Company or any of its Subsidiaries, and no power of attorney granted by either the Company or any of its Subsidiaries is a party with respect to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into material Taxes is currently in the ordinary course of business) not primarily related to Taxes)force.
(hi) Neither the Company nor any of its Subsidiaries (iA) is liable a party to any agreement providing for the allocation, sharing or indemnification of any material amount of Taxes imposed on or with respect to any individual or other person, (B) has been a member of an affiliated group (or similar state, local or foreign filing group) filing a consolidated U.S. federal income Tax Return (other than the group the common parent of which is the Company) or (C) has any liability for the Taxes of any other Person person (other than the Company and or any of its Subsidiaries) under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law law), or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionsuccessor.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b).
(k) There are no material Liens for Taxes upon the assets or properties of the Company or any of its Subsidiaries, other than Permitted Liens.
(l) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date, or (B) “closing agreement,” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Law), entered into on or prior to the Closing Date, or (C) any ruling received from the Internal Revenue Service.
(m) The Company has not beenpreviously delivered or made available to Parent or Merger Sub complete and accurate copies of each of (i) all audit reports, is notletter rulings, technical advice memoranda, and immediately prior similar documents issued by any tax authority relating to the Share Exchange Closing will not beUnited States Federal, treated state, local or foreign Taxes due from or with respect to the Company and its Subsidiaries and (ii) any closing agreements entered into by any of the Company and its Subsidiaries with any tax authority, in each case existing on the date hereof.
(n) Neither the Company nor any of its Subsidiaries is or has been a United States real property holding corporation (as an “investment company” within defined in Section 897(c)(2) of the meaning of Code) during the applicable period specified in Section 368(a)(2)(F897(c)(1)(A)(ii) of the Code.
(lo) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action constituted a “distributing corporation” or agreed to take any action, nor to a “controlled corporation” (within the knowledge meaning of Section 355(a)(1)(A) of the Company Code) in a distribution of stock to which Section 355 of the Code (or any so much of its Subsidiaries are there any facts or circumstances, that could reasonably be expected Section 356 of the Code as relates to prevent Section 355 of the Transactions from qualifying for Code) applies and which occurred within two years of the Intended Tax Treatmentdate of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Taxes. (a) All material Tax Returns required to be filed by or with respect to any member of the Company or any of its Subsidiaries Group have been timely filed (taking into account any applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are true, correct correct, and complete in all material respects, and all material Taxes due and payable (whether or not shown on . No member of the Company Group is currently the beneficiary of any extension of time within which to file any Tax Return) have been paidReturn (other than pursuant to automatic extensions to file Tax Returns obtained in the ordinary course of business).
(b) The All Taxes (whether or not to be due on any Tax Returns) due and payable by, or imposed on, any member of the Company Group (or for which a member of the Company Group is otherwise liable) have been duly and each timely paid. All Taxes that are required to be paid or accrued by or with respect to the Company Group (or otherwise required to be reserved for in accordance with GAAP) for any Pre-Closing Tax Period will have either been paid prior to the Closing or taken into account in computing Indebtedness.
(c) During the last five (5) years, no deficiencies for Taxes have been claimed, proposed, asserted, or assessed against any member of its Subsidiaries have withheld from amounts owing the Company Group.
(d) No Tax Contest is currently pending, being conducted, or threatened in writing with respect to any employeeTaxes of, creditor or other Person Tax matters with respect to, any member of the Company Group.
(e) There are no outstanding agreements or consents extending or waiving (or having the effect of extending or waiving) the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes due from any member of the Company Group for any taxable period, and no request for any such waiver or extension is currently pending.
(f) Each member of the Company Group has, or has caused to be, duly and timely withheld, collected, and paid over to the appropriate Governmental Authorities all material Taxes required by applicable Law to be so withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so collected, and paid over and has complied in all material respects with all Tax information reporting provisions under all applicable withholding and related reporting requirements with respect to such TaxesLaws.
(cg) There are no Liens for Taxes (upon the assets or properties of any member of the Company Group, other than Permitted Liens.
(h) upon the property or assets No member of the Company Group has (i) participated in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b) or any (ii) in the past two (2) years, been a “distributing corporation” or a “controlled corporation” (within the meaning of its SubsidiariesSection 355(a)(1)(A) of the Code), in a distribution intended to qualify under Section 355(a) of the Code.
(di) Each member of the Company Group is resident for Tax purposes only in the jurisdiction in which it is incorporated. No claimmember of the Company Group is or has been subject to Tax in any jurisdiction other than its jurisdiction of incorporation by virtue of having a permanent establishment or other place of business or taxable presence in that jurisdiction.
(j) During the last five (5) years, assessment, deficiency no jurisdiction in which any member of the Company Group does not file Tax Returns with respect to a particular type or proposed adjustment for any material amount category of Tax has been asserted made a written claim to the effect that such member is or may be required to file such Tax Returns or is or may be subject to Tax of such type in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaidsuch jurisdiction.
(ek) There is no material Tax audit or other examination No member of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
Group (fi) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any a Tax indemnification or Tax sharing or similar Tax agreement Sharing Agreement (other than any such agreement solely between members of the Company and its existing Subsidiaries and Group or pursuant to customary provisions in commercial Contracts (or Contracts contracts entered into in the ordinary course of business) business that are not primarily related to Taxes).
, (h) Neither the Company nor any of its Subsidiaries (iii) is liable for Taxes or was a member of any other Person affiliated, consolidated, combined, unitary, group relief, or aggregate group for Tax purposes (other than any such group consisting solely of members of the Company and its SubsidiariesGroup), (iii) has any liability for any Tax of any Person other than a member of the Company Group under Treasury Regulation Regulations Section 1.1502-6 (or any similar provision of state, local local, or foreign non-U.S. Tax Law or Law), as a transferee or successor or successor, by Contract (other than pursuant to customary provisions in commercial Contracts (or Contracts contracts entered into in the ordinary course of business) business that are not primarily related to Taxes) or otherwise, or (iiiv) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transactionclosing agreement” within the meaning of Treasury Regulation 1.6011Section 7121 of the Code (or any similar provision of state, local, or non-4(b)(2U.S. Tax Law).
(kl) The No member of the Company has not beenGroup will be required to include any material item of income in, is notor exclude any material item of deduction from, and immediately taxable income for any period (or any portion thereof) beginning after the Closing Date as a result of (i) any installment sale or open transaction on or prior to the Share Exchange Closing will not beDate, treated (ii) any accounting method change or agreement with any Governmental Authority filed or made on or prior to the Closing Date, (iii) the use of an incorrect method of accounting prior to the Closing Date, (iv) any prepaid amount received, or deferred revenue accrued, on or prior to the Closing Date, or (v) any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local, or applicable foreign Tax Law). No member of the Company Group has made an election pursuant to Section 965(h) of the Code.
(m) No member of the Company Group (i) is, or has been a shareholder of, a “personal holding company” as an defined in Section 542 of the Code (or any similar provision of state, local, or applicable foreign Law), (ii) is or has been a shareholder of a “passive foreign investment company” within the meaning of Section 368(a)(2)(F1297 of the Code, (iii) is or been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code, or (iv) is or has been a shareholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, local, or applicable foreign Law).
(n) Each member of the Company Group has properly (i) collected and remitted sales, premium, value added, and similar Taxes with respect to sales made or services provided to its clients and (ii) for all sales made or services provided that are exempt from sales, premium, value added, and similar Taxes, and that were made without charging or remitting sales, premium, value added, or similar Taxes, received and retained any appropriate Tax exemption certificates and other documentation qualifying such sale as exempt from such Taxes.
(o) No member of the Company Group (i) has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or treated as a U.S. corporation under Section 7874(b) of the Code or (ii) was created or organized in the United States such that any Subsidiary would be taxable in the United States as a domestic entity pursuant to Treasury Regulations Section 301.7701-5(a).
(p) No member of the Company Group has any unpaid Tax liability as a result of Section 965 of the Code, including by reason of an election under Section 965(h) of the Code.
(lq) Except as Each member of the Company Group has provided or made available to Purchaser all documentation relating to, and is in material compliance with all terms and conditions of, any Tax exemption, Tax holiday, Tax incentive, or other Tax reduction agreement or order of a territorial or non-U.S. government. To the Knowledge of the Company, the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and the Transactions contemplated herebyeffectiveness of any such Tax exemption, neither the Tax holiday, Tax incentive, or other Tax reduction agreement or order.
(r) The Company nor any of is, and has been at all times since its Subsidiaries formation, properly classified as a partnership for U.S. federal (and applicable state and local) income Tax purposes. No PTET Election has taken any action been made by or agreed with respect to take any action, nor to the knowledge of the Company or any member of its Subsidiaries the Company Group in any jurisdiction with respect to U.S. state or local income Tax.
(s) Each member of the Company Group that is treated as a partnership for United States federal income Tax purposes has made (or is eligible to make) a valid election pursuant to Section 754 of the Code that is or will be in effect for the period that includes the Closing Date.
(t) The prices and terms for the provision of any property or services by or to any member of the Company Group are there arm’s length for purposes of the relevant transfer pricing Laws, and all related documentation required by such Laws has been timely prepared or obtained and, if necessary, retained.
(u) No member of the Company Group has any facts or circumstances, item of income that could reasonably be expected constitute subpart F income within the meaning of Section 952 of the Code or “global intangible low-taxed income” as defined in Section 951A of the Code with respect to prevent any taxable period that includes the Transactions from qualifying Closing Date (for this purpose, treating the Intended Closing Date as the last day in such taxable period).
(v) Section 4.14(v) of the Disclosure Letter sets forth, for each member of the Company Group, (i) the U.S. federal income Tax Treatmentclassification of such member and (ii) whether an entity classification election has been made with respect to such member pursuant to Treasury Regulations Section 301.7701-3(c) and with respect to each such member and each such election, the effective date of such election and the classification elected pursuant thereto.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Lincoln International, Inc.), Equity Purchase Agreement (Lincoln International, Inc.)
Taxes. (ai) All The Company and each of its Subsidiaries (A) has duly and timely filed (taking into account any valid extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely it, and each such filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are Return is true, correct and complete in all material respects, and (B) has paid all material Taxes due and payable that are required to be paid by it (whether or not shown as due on any such Tax ReturnReturns), and (C) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and has complied in all material respects with all applicable Laws relating to the payment, collection, withholding and remittance of Taxes by it and related information reporting requirements with respect to amounts owing to or from any of its employees, creditors, customers, or other third parties. The most recent financial statements contained in the Company Reports reflect an adequate reserve (in accordance with U.S. GAAP) for all material Taxes accrued but not then payable by the Company and its Subsidiaries through the date of such Taxesfinancial statements.
(cii) There are no Tax Liens for Taxes (other than Permitted Liens) upon the any property or assets of the Company or any of its SubsidiariesSubsidiaries other than Permitted Liens.
(diii) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax material Taxes has been proposed or asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unpaid or unresolved in whole or unpaidin part.
(eA) There is are no material Tax audit audits, suits, claims, examinations, investigations, or other examination proceedings in respect of the Company Taxes or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company Tax matters pending or any of its Subsidiaries been notified threatened in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of against the Company or any of its Subsidiaries.
, and (fB) Neither with respect to any Tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with granted any Governmental Authority waiver of any statute of limitations with respect to Taxes. Neither to, or any extension of a period for the Company nor assessment of, any of its Subsidiaries has made a change of material Tax, other than any method of accounting with respect to any Taxessuch waiver or extension that is automatic or automatically granted.
(gv) Neither the Company nor any Subsidiary (A) has any material liability for the payment of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement imposed on any other Person (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries Subsidiaries) under Treasury Regulations Section 1.1502-6 or any analogous or similar provision of U.S. state or local or non-U.S. Tax Law; (iB) is liable has material liability as a transferee, successor or otherwise by operation of Law for Taxes of any other Person (other than the Company or any of its Subsidiaries); or (C) is a party to any Tax sharing, Tax allocation, Tax indemnification or similar agreement other than (1) any agreement or arrangement solely among the Company and its Subsidiaries, or (2) under Treasury Regulation Section 1.1502-6 any Tax sharing or indemnification provisions contained in any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts agreement entered into in the ordinary course of business) business and not primarily related relating to TaxesTax.
(vi) In the last two years, neither the Company nor any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a transaction purported or intended to qualify for tax-free treatment under Section 355(a) of the Code (ii) has ever been a member or any similar provision of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is Law).
(vii) Neither the Company or nor any of its SubsidiariesSubsidiaries has “participated” in, or is currently participating in, a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local Law).
(iviii) Within the past three (3) years, no No material written claim has been made within the past three years by any a Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns or pay Taxes that it the Company or any of its Subsidiaries is or may be become subject to taxation in taxation, or required to file any Tax Return in, that jurisdiction.
(jix) There are no material adjustments under Section 481 of the Code (or any analogous or similar provision of U.S. state, or local or non-U.S. Tax Law) that are required to be taken into account by the Company or any of its Subsidiaries in any taxable period (or portion thereof) ending after the Closing Date by reason of a change in method of accounting in any taxable period (or portion thereof) ending on or before the Closing Date.
(x) For U.S. federal income tax purposes, the Company is and has since formation been properly classified as a corporation.
(xi) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into by, or issued by any Tax authority with respect to the Company or any of its Subsidiaries which agreement or ruling would be effective after the Closing Date.
(xii) Neither the Company nor any of its Subsidiaries is subject to Tax in any country other than its country of formation or organization by virtue of having a permanent establishment or place of business in that country.
(xiii) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any (A) change in or use of an improper method of accounting for a taxable period ending on or prior to the Closing Date, (B) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law) executed on or prior to the Closing Date, (C) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law made or created at or prior to the Closing Date), (D) installment sale or open transaction disposition made on or prior to the Closing Date, (E) prepaid amount received or deferred revenue accrued on or prior to the Closing Date, or (F) (i) “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) or (ii) “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) of the Company or any of its Subsidiaries attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date.
(xiv) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2).
(k) The Company has not beendeferred any material Taxes, is notor will otherwise be liable for any material Taxes, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of under Section 368(a)(2)(F) 965 of the Code.
(lxv) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken ever held any action interest in any entity that is classified as a partnership for federal income Tax purposes, a “controlled foreign corporation” (as defined under Section 957 of the Code) or agreed to take any actiona “passive foreign investment company” (as defined in Section 1297 of the Code) for U.S. federal (and applicable state and local) income Tax purposes.
(xvi) The Company is not, nor to and has never been, a United States real property holding corporation within the knowledge meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(xvii) Each of the Company or any of and its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatmenthave complied in all material respects with all escheat and unclaimed property Laws.
Appears in 2 contracts
Sources: Merger Agreement (Streamline Health Solutions Inc.), Merger Agreement (Streamline Health Solutions Inc.)
Taxes. (a) All material U.S. federal, state, local, and non-U.S. Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries Seller have been timely filed (taking into account any applicable extensions)filed, all and such Tax Returns (taking into account are true and correct in all amendments thereto) are true, correct material respects and complete have been completed in accordance with applicable Law in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all (i) All material Taxes required by applicable Law to be withheldpaid by or on behalf of Seller have been timely paid, and (ii) all material U.S. federal and state and non-U.S. income taxes, material Federal Insurance Contribution Act amounts, material Federal Unemployment Tax Act amounts and other material Taxes required to be paid or withheld by Seller with respect to employees and other third parties of Seller have been timely paid or withheld (and withheld amounts have been timely paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxesappropriate Taxing Authority). There are no Encumbrances for Taxes upon the Purchased Assets, except for Permitted Encumbrances.
(c) There are is no Liens for Taxes (other than Permitted Liens) upon the property material Tax deficiency outstanding, assessed in writing or assets of the Company proposed in writing against or any of its Subsidiarieswith respect to Seller.
(d) No claimwritten agreement, assessmentwritten waiver or other written arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, deficiency but not limited to, any applicable statute of limitation) or proposed adjustment the period for filing any material amount of Tax Return has been asserted in writing executed or assessed filed with any Taxing Authority by any Governmental Authority against the Company or any on behalf of its Subsidiaries that remains unresolved or unpaidSeller.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor Seller has the Company or any of its Subsidiaries not been notified in writing of any request for an audit, examination or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect proceeding with respect to any material Taxes Tax Return of Seller, nor is any such audit, examination or proceeding presently in progress. No adjustment relating to any material Tax Return filed by Seller has been proposed in writing by any Taxing Authority. As of the Company date hereof, there is outstanding no written claim that the Seller is or any of its Subsidiariesmay be subject to taxation in a jurisdiction in which it does not file Tax Returns.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing There is no agreement, private letter rulingplan, advance tax ruling arrangement or similar agreement with other Contract covering any Governmental Authority with respect current or former Business Employee or to Taxes. Neither which the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries Seller is a party to or by which the Seller is bound that, considered individually or considered collectively with any Tax indemnification other such agreements, plans, arrangements or Tax sharing other Contracts, will, or similar Tax agreement would reasonably be expected to, as a result of the transactions contemplated hereby (other than whether alone or upon the occurrence of any such agreement solely between additional or subsequent events) be characterized as a “parachute payment” within the Company and its existing Subsidiaries and customary commercial Contracts meaning of Section 280G of the Code (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 corresponding or any similar provision of state, local or foreign Tax Law law). No security of the Seller is readily tradable on an established securities market or as a transferee or successor or by Contract otherwise (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(j) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation 1.6011-4(b)(2Section 280G of the Code and the regulations promulgated thereunder) such that the Seller is ineligible to seek shareholder approval in a manner that complies with Section 280G(b)(5) of the Code. The Seller has not ever had any obligation to report, withhold or gross up any excise Taxes under Section 280G or Section 4999 of the Code. Section 2.12(f) of the Seller Disclosure Schedule lists each Person who the Seller reasonably believes is, with respect to the Seller, a “disqualified individual” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder), as determined as of the date hereof.
(kg) The Company has not been, Section 2.12(g) of the Seller Disclosure Schedule contains a list of each Seller Benefit Plan in which a Business Employee participates that is not, and immediately prior to the Share Exchange Closing will not be, treated as an a “investment companynon-qualified deferred compensation plan” within the meaning of Section 368(a)(2)(F409A(d)(1) of the Code.
(l) Except as contemplated by this Agreement . Each such Seller Benefit Plan has been operated in compliance with Section 409A of the Code and the Transactions contemplated herebyregulations issued thereunder. The Seller has not ever had any obligation to report, neither the Company nor withhold or gross up any of its Subsidiaries has taken Taxes with respect to any action or agreed to take any action, nor to the knowledge Business Employee under Section 409A of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentCode.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Synacor, Inc.), Asset Purchase Agreement (Synacor, Inc.)
Taxes. (a) All Each of the Company and its Subsidiaries has (i) timely filed all income Tax Returns and all other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed them (taking into account any applicable extensions), ) and all such Tax Returns (taking into account all amendments thereto) returns are true, correct and complete in all material respects, respects and (ii) paid or accrued (in accordance with GAAP) all material Taxes due and payable (whether other than such Taxes as are being contested in good faith by the Company or not shown on any Tax Return) have been paidits Subsidiaries.
(b) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property material federal, state, local or assets foreign audits or examinations of any Tax Return of the Company or its Subsidiaries ongoing or pending and neither the Company nor any Subsidiary has received written notice of its Subsidiaries.
(d) any such material audit or examination. No claim, assessment, deficiency or proposed adjustment claim for any material amount of Tax unpaid Taxes has been asserted in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxesby a Governmental Entity, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) claim that has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written resolved. No claim has been made in writing by any a Governmental Authority Entity in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction.
(jc) The Company and each of its Subsidiaries have withheld all Taxes required to have been withheld from payments made to its employees, independent contractors, creditors, stockholders and other third parties and, to the extent required, such Taxes have been paid to the relevant Governmental Entity.
(d) There are no outstanding written waivers to extend the statutory period of limitations applicable to the assessment of any material Taxes or material deficiencies against the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any agreement providing for the allocation or sharing of material Taxes, except for any such agreements that (i) are solely between the Company and/or any of its Subsidiaries, (ii) will terminate as of the Closing, or (iii) are entered into in the ordinary course of business, the principal purpose of which is not the allocation or sharing of Taxes.
(f) There are no material Liens for Taxes upon the assets of the Company or any of its Subsidiaries that are not provided for in the Company SEC Reports, except Liens for Taxes not yet due and payable and Liens for Taxes that are being contested in good faith and for which adequate reserves have been established on the Company Balance Sheet.
(g) In the last two (2) years, none of the Company or any of its Subsidiaries has distributed stock of another Person or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code (or any similar provision of state, local, or non-U.S. Law).
(h) Neither the Company nor any of its Subsidiaries (A) is or has been in the past five (5) years a member of a group (other than a group the common parent of which is the Company or one of its Subsidiaries) filing a consolidated, combined, affiliated, unitary or similar income Tax Return, or (B) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law, as a transferee or successor, or pursuant to any contractual obligation.
(i) Neither the Company nor any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(j) The U.S. federal income tax entity classification of each Subsidiary of the Company not organized within the United States is set forth on Section 5.13(j) of the Company Disclosure Schedule.
(k) The Company has not beenand each of its Subsidiaries are in compliance in all material respects with all terms and conditions of any Tax exemption, is notTax holiday or other Tax reduction agreement or order (“Tax Incentive”), and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) consummation of the Code.
(l) Except as transactions contemplated by this Agreement will not have any adverse effect on the continued validity and the Transactions contemplated hereby, neither the Company nor effectiveness of any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended such Tax TreatmentIncentive.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Taxes. (a) (i) All income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any all applicable extensions), and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, (ii) the Company and its Subsidiaries have fully and timely paid (or have had paid on their behalf) all material Taxes due and payable (whether or not shown to be due on any Tax Return) and have been paid.
(b) The made adequate provision in accordance with GAAP for all material Taxes not yet due and payable in the most recent financial statements of the Company and each of its Subsidiaries, and (iii) the Company and its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable Laws relating to the withholding and related reporting requirements with respect payment over to such Taxesthe appropriate Governmental Authority of all Taxes required to be withheld by the Company and its Subsidiaries.
(ci) There are no Liens outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection, assessment or reassessment of, any material Taxes due from the Company or any of its Subsidiaries for any taxable period and no request for any such waiver or extension is currently pending, (other than Permitted Liensii) upon to the property Company’s Knowledge, no audit is presently in progress, pending or assets of threatened in writing with respect to any material Taxes due from or with respect to the Company or any of its Subsidiaries.
, (diii) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted no claim in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved or unpaid.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).
(h) Neither the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of and its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in by that jurisdiction, and (iv) all material deficiencies for Taxes asserted or assessed in writing against the Company or any of its Subsidiaries have been fully and timely paid or properly reflected under GAAP in the most recent financial statements of the Company and its Subsidiaries.
(jc) There are no Liens for Taxes upon the assets or properties of the Company or any of its Subsidiaries, except for Liens for current Taxes and assessments not yet past due.
(d) Neither the Company nor any of its Subsidiaries has participated in a “any listed transaction” transaction within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(24(b) (or any similar provision of state, local or non-U.S. Tax Law).
(ke) The Company has not been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the three-year period ending on the date hereof that was purported or intended to be governed by Section 355 of the Code.
(f) Neither the Company nor any of its Subsidiaries (i) is or has been a member of a group (other than a group the common parent of which is the Company) filing a consolidated, combined, affiliated, unitary or similar income Tax Return or (ii) has any Liability for the Taxes of any Person (other than any of the Company or its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee, successor, by Contract (other than pursuant to any ordinary course Contract, the principal purpose of which does not relate to Taxes) or otherwise.
(g) Neither the Company nor any of its Subsidiaries will be required to include any item of material income in, or exclude any item of material deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any change in, or use of improper, method of accounting adopted, requested or initiated at or prior to the Closing for a taxable period ending on or prior to the Closing Date, (ii) any intercompany transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign income Tax law), (iii) any installment sale or open transaction disposition made at or prior to the Closing, (iv) any item of deferred revenue, (v) any election under Section 965 of the Code, (vi) any prepaid amounts received on or prior to the Closing Date, or (vii) any agreement entered into with any Governmental Authority with respect to Taxes.
(h) No private letter rulings, technical advice memoranda or similar material agreements or rulings have been requested, entered into or issued by any taxing authority with respect to the Company or any of its Subsidiaries which rulings remain in effect.
(i) Neither the Company nor any of its Subsidiaries has been a United States real property holding corporation, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(j) To the Knowledge of the Company, each of the Company and its Subsidiaries has not been, is not, and immediately prior to the Share Exchange Closing Effective Time will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(lk) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries has taken any action that could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment. To the Knowledge of the Company, there are no facts or agreed to take circumstances, other than any action, nor facts and circumstances to the knowledge extent that such facts and circumstances exist or arise as a result of or related to any act or omission occurring after the Company date of this Agreement of any PubCo Entity or any of its Subsidiaries are there any facts or circumstancesAffiliates not contemplated by this Agreement, that could reasonably be expected to prevent the Transactions Merger from qualifying for the Intended Tax Treatment.
(l) The Company is and has been since its date of formation, a C corporation for U.S. federal income tax purposes.
(m) Neither the Company nor any of its Subsidiaries (i) is a “controlled foreign corporation” as defined in Section 957 of the Code, (ii) is a “passive foreign investment company” within the meaning of Section 1297 of the Code, or (iii) has a permanent establishment (with the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Avalon GloboCare Corp.), Agreement and Plan of Merger (Avalon GloboCare Corp.)
Taxes. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company:
(a) All material Tax Returns required by Applicable Law to be filed with any Governmental Authority by or with respect to on behalf of the Company or any of its Subsidiaries have been timely filed when due (taking into account any applicable valid extensions)) in accordance with all Applicable Laws, and all such Tax Returns (taking into account all amendments thereto) are true, complete and correct and complete in all material respects, and all material Taxes due and payable (whether or not shown on any Tax Return) have been paid.
(b) The Company and each of its Subsidiaries have withheld from amounts owing has timely paid (or has had timely paid on its behalf) to the appropriate Governmental Authority all Taxes due and payable by it (whether or not shown on any employee, creditor or other Person all material Taxes required by applicable Law to be Tax Return). Each of the Company and its Subsidiaries has (i) timely withheld, paid over to the proper Governmental Authority in a timely manner deducted and collected all such withheld amounts Taxes required to have been so withheld, deducted or collected in connection with amounts paid, received or owing to or from any employee, creditor, stockholder, independent contractor, customer or other third party; (ii) timely paid over any amounts so withheld, deducted or collected to the appropriate Governmental Authority; and (iii) otherwise complied in all material respects with all applicable withholding Applicable Law relating to the withholding, collection and related remittance of Taxes (including information reporting requirements with respect to such Taxesrequirements).
(c) The unpaid Taxes of the Company and each of its Subsidiaries did not, as of the Company Balance Sheet Date, exceed the reserve or accrual for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Company Balance Sheet (rather than in any notes thereto) in accordance with GAAP.
(d) There is no claim, audit, action, suit, dispute, examination, investigation or other proceeding ongoing, pending or threatened in writing against or with respect to the Company or its Subsidiaries in respect of any Taxes or Tax Returns.
(e) During the two-year period ending on the date hereof, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Applicable Law).
(f) There are no Liens for Taxes (other than Permitted Liens) upon on any of the property or assets of the Company or any of its SubsidiariesSubsidiaries other than Permitted Liens.
(dg) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted jurisdiction in writing or assessed by any Governmental Authority against which the Company or any a Subsidiary of its Subsidiaries the Company does not file Tax Returns of a particular type has made a claim in writing that remains unresolved the Company or unpaid.
(e) There such Subsidiary is no material or may be liable for Tax, or required to file Tax audit or other examination Returns, of such type in that jurisdiction. None of the Company or any of its Subsidiaries presently (i) is or has been resident for Tax purposes in progress with respect to any material Taxes, nor has the Company or any a country outside of its Subsidiaries been notified in writing country of any request organization or threat for such an audit incorporation; (ii) has, or has ever had, a permanent establishment or other examination, and there are no waivers, extensions or written requests for taxable presence in any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar Tax agreement (country other than its country of organization or incorporation; or (iii) is, or has ever been, subject to income Tax in any such agreement solely between the Company and country outside its existing Subsidiaries and customary commercial Contracts (country of incorporation or Contracts entered into in the ordinary course of business) not primarily related to Taxes)organization.
(h) Neither the Company nor any of its Subsidiaries is currently the beneficiary of any modification, waiver or extension of time within which to file any Tax Return, and no request for any such modification, waiver or extension is currently pending. Neither the Company nor any of its Subsidiaries has granted any extension, modification or waiver of the limitation period applicable to any Tax or Tax Return (including with respect to the payment, assessment or collection of any Tax) that remains in effect and no request for any such extension, modification or waiver is currently pending.
(i) is liable No adjustment with respect to any Tax Return, claim for any additional Tax, or deficiency for Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or has been received by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its Subsidiaries.
(i) Within the past three (3) years, no written which adjustment, claim or deficiency has not been made by any Governmental Authority where the Company fully resolved or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdictionpaid.
(j) Neither the Company nor any of its Subsidiaries (i) is or has been a member of any affiliated, consolidated, combined, unitary or similar group for purposes of filing Tax Returns or paying Taxes (other than a group the common parent of which is the Company or any of its Subsidiaries), (ii) is a party to or bound by, or has any obligation under, any agreement or arrangement relating to the apportionment, sharing, assignment, allocation or indemnification of or for any Tax or Tax asset (other than (A) an agreement solely between or among the Company and/or any of its Subsidiaries or (B) a commercial agreement entered into in the ordinary course of business that does not have as a principal purpose addressing Tax matters) or (iii) has any liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any analogous or similar provision of state, local or foreign Tax law), as transferee or successor, by Contract or otherwise. None of the Company or its Subsidiaries has made an election under Section 965(h) of the Code.
(k) None of the Company or any of its Subsidiaries has participated in a any “listed transaction” within the meaning of Treasury Regulation Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or foreign law).
(k) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Sources: Merger Agreement (Juniper Networks Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Taxes. (a) All material Tax Returns required to be have been filed by or with respect to the Company or any of its Companies and their Subsidiaries have been timely filed (taking into account any applicable extensionsextension of time to file granted or obtained), all and such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects, and all material . All Taxes due and shown to be payable (whether or not shown on any Tax Return) such Returns have been paid or will be timely paid, except for Taxes being contested in good faith by appropriate proceedings to the extent reserves have been established with respect thereto. To the Knowledge of the Seller, there are no material Tax liens on the assets of the Companies or their Subsidiaries (other than Permitted Encumbrances).
(b) The Company and each As of its the date hereof, (i) no material Return of the Companies or any of their Subsidiaries have withheld from amounts owing to any employee, creditor or other Person all material Taxes required by applicable Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to the TS Business is under audit or examination by any taxing authority, and no written notice of any such Taxesaudit or examination has been received by either the Companies or any of their Subsidiaries and (ii) no material audit adjustments have been proposed by any taxing authority for the Companies or any of their Subsidiaries or with respect to the TS Business.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets As of the Company date hereof, no material claim has been made in the past five years by an authority in a jurisdiction where the Companies or any of its Subsidiariestheir Subsidiaries do not file Returns (or where Returns have not been filed with respect to the TS Business) that any of the Companies or such Subsidiaries or the TS Business is or may be subject to taxation by that jurisdiction, and, to the Knowledge of the Seller, there is no basis for any such claim to be made.
(d) No claimAs of the date hereof, assessment, deficiency or proposed adjustment for neither the Seller nor any material amount of Tax has been asserted in writing or assessed by its Affiliates is the beneficiary of any Governmental Authority against extension of time within which to file any Return with respect to the Company Companies or any of its Subsidiaries that remains unresolved or unpaidtheir Subsidiaries, and no such extensions have been consented to with respect to the TS Business (in each case, other than in the ordinary course of business consistent with past practice).
(e) There is no material Tax audit or other examination of Neither the Company or Companies nor any of its their Subsidiaries presently in progress with respect is or has been a party to any material Taxes, nor has the Company or any of its Subsidiaries been notified “listed transaction” as defined in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its SubsidiariesTreasury Regulation Section 1.6011-4(b)(2).
(f) Neither the Company Companies nor any of its Subsidiaries has made a request for or entered into a closing agreement, private letter ruling, advance tax ruling or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxes.
(g) Neither the Company nor any of its their Subsidiaries is a party to any Tax material agreement relating to the sharing, allocation or indemnification of Taxes, or Tax sharing any similar agreement, contract or similar Tax agreement arrangement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) business the primary purpose of which is not primarily related to TaxesTax).
(h) Neither the Company nor , or has any of its Subsidiaries (i) is liable material liability for Taxes of any other Person (other than a group the Company and its Subsidiariescommon parent of which is the Seller) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local local, or foreign Tax Law or non-U.S. Law, as a transferee or successor or by Contract contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) business the primary purpose of which is not primarily related to TaxesTax).
(g) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing For U.S. federal income Tax purposes and for U.S. federal, all applicable state or local income Tax purposes, other than a group neither the common parent of which was or is the Company or Companies nor any of its Subsidiariesthe Subsidiaries have made any election to be classified as an association taxable as a corporation under the Code or under any corresponding state income Tax provision.
(i) Within the past three (3) years, no written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.
(jh) Neither the Company Companies nor any of its their Subsidiaries has participated nor, after the Closing Date, the Buyer will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) “closing agreement” as described in a “listed transaction” within Section 7121 of the meaning Code (or any corresponding provision of Treasury Regulation 1.6011state, local, or non-4(b)(2U.S. Tax Law).
, (kii) The Company has not been, is not, and immediately installment sale or open transaction disposition made on or prior to the Share Exchange Closing will not beDate, treated as an “investment company” within (iii) prepaid amount received on or prior to the meaning of Closing Date, or (iv) any adjustments under Section 368(a)(2)(F) 481 of the Code.
Code (lor any similar adjustments under any provision of the Code or any corresponding provision of state, local, or non-U.S. Law) Except by reason of a change in method of accounting in any taxable period ending on or before the Closing Date or as a result of the consummation of the transactions contemplated by this Agreement and the Transactions contemplated hereby, neither the Company nor any of its Subsidiaries has taken any action or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax TreatmentAgreement.
Appears in 2 contracts
Sources: Interest Purchase Agreement (Avnet Inc), Interest Purchase Agreement (Tech Data Corp)
Taxes. (a) All Parent and each of its Subsidiaries have (i) timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensions), them and all such filed Tax Returns (taking into account all amendments thereto) are true, correct complete and complete accurate in all material respects, respects and (ii) paid all material Taxes due and payable owing (whether or not shown on any such Tax ReturnReturns), except, in the case of clause (i) or clause (ii) hereof, with respect to matters contested in good faith or for which adequate reserves have been paidestablished in accordance with GAAP.
(b) The Company and each As of its Subsidiaries have withheld from amounts owing to any employeethe date of this Agreement, creditor there are no pending or ongoing audits, examinations, investigations or other Person all material Taxes required Proceedings by applicable Law to be withheld, paid over to the proper any Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements respect of Taxes of or with respect to such Taxes.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company Parent or any of its Subsidiaries.
(dc) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted in writing or assessed by any Governmental Authority against the Company All Taxes that Parent or any of its Subsidiaries that remains unresolved are or unpaidwere required by Law to withhold or collect have been duly and timely withheld or collected in all material respects on behalf of its respective employees, independent contractors or other Third Parties and, have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e) There is no material Tax audit or other examination of the Company or any of its Subsidiaries presently in progress with respect to any material Taxes, nor has the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of the Company or any of its Subsidiaries.
(fd) Neither the Company Parent nor any of its Subsidiaries has made ever been a request for member of a consolidated, combined or entered into unitary Tax group (other than such a closing agreement, private letter ruling, advance tax ruling group the common parent of which is Parent or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any TaxesSubsidiaries).
(ge) Neither the Company Parent nor any of its Subsidiaries is a party to or is bound by any Tax indemnification sharing, Tax allocation or Tax sharing indemnification agreement or similar Tax agreement arrangement (other than any such an agreement solely or arrangement exclusively between the Company or among Parent and its existing Subsidiaries and or customary commercial Contracts (or Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that will not primarily related be terminated on or before the Closing Date without any future liability to Taxes)the Company or its Subsidiaries.
(f) There are no Liens for Taxes on any of the assets of Parent or any of its Subsidiaries other than Permitted Liens.
(g) Neither Parent nor any of its Subsidiaries has participated in or been a party to a transaction that, as of the date of this Agreement, constitutes a “listed transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and applicable Treasury Regulations thereunder.
(h) Neither the Company Parent nor any of its Subsidiaries (i) is liable for Taxes has taken any action or knows of any other Person (other than fact that would reasonably be expected to prevent the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Mergers from qualifying for the Intended Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any of its SubsidiariesTreatment.
(i) Within Acquisition Sub is a newly formed entity created for the past three purpose of undertaking the First Merger. Prior to the Effective Time, Acquisition Sub will not have engaged in any other business activities and will have incurred no liabilities or obligations other than as contemplated by this Agreement.
(3j) yearsParent has made a valid election under Part I of Subchapter M of Subtitle A, no written Chapter 1, of the Code to be taxed as a RIC. Parent has qualified as a RIC with respect to its first taxable year ending on December 31, 2015, and with respect to each taxable year thereafter, and expects to so qualify for its taxable year including the Effective Time. No challenge to Parent’s status as a RIC is pending or has been threatened in writing.
(k) Each Subsidiary of the Parent that is a partnership, joint venture, or limited liability company has been since its formation treated for United States federal income Tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation.
(l) No claim has been made in writing by any Governmental a Taxing Authority in a jurisdiction where the Company Parent or any of its Subsidiaries does not file Tax Returns that it the Parent or any such Subsidiary is or may be subject to taxation in by that jurisdiction, and which, if upheld, would reasonably result in a material Tax liability.
(jm) Neither the Company Parent nor any of its Subsidiaries has participated in a “listed transaction” within any liability for the meaning Taxes of another Person other than the Parent and its Subsidiaries under Treasury Regulation 1.6011Section 1.1502-4(b)(26 (or any similar provision of state, local or foreign Law), as a transferee, successor or payable pursuant to a contractual obligation.
(kn) The Company has not been, is not, and immediately prior to Within the Share Exchange Closing will not be, treated past five years (or otherwise as an part of a “investment companyplan (or series of related transactions)” within the meaning of Section 368(a)(2)(F355(e) of the Code of which the Mergers are also a part), neither the Parent nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 355(a) of the Code.
(lo) Except as contemplated by this Agreement and Neither the Transactions contemplated hereby, neither the Company Parent nor any of its Subsidiaries has taken any action requested a private letter ruling from the IRS or agreed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances, that could reasonably be expected to prevent the Transactions comparable rulings from qualifying for the Intended Tax Treatmentother Taxing Authorities.
Appears in 2 contracts
Sources: Merger Agreement (Alcentra Capital Corp), Merger Agreement (Crescent Capital BDC, Inc.)
Taxes. (a) All material Tax Returns required to be filed by or with With respect to the Company or any of its Subsidiaries have been timely filed (taking into account any applicable extensionsfollowing Sections 3.15(a), all such Tax Returns (taking into account all amendments theretob), (c), (e) are trueand (g), correct and complete in all material respectsexcept as would not have, and all material Taxes due and payable (whether or would not shown reasonably be expected to have, a Material Adverse Effect on any Tax Return) have been paid.the Company:
(ba) The Company and each of its Subsidiaries have withheld from amounts owing to any employee, creditor or other Person has timely filed (after taking into account all material Taxes applicable extensions) all Tax Returns required by applicable Law to be withheldfiled by them, paid over to the proper Governmental Authority in a timely manner and all such withheld amounts required Tax Returns are true, correct and complete.
(b) Each of the Company and its Subsidiaries has paid or caused to have been so be paid over all Taxes due and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxespayable.
(c) There are no Liens for Taxes (other than Permitted Liens) upon the property or assets of the Company or any of its Subsidiaries.
(d) No claim, assessment, deficiency or proposed adjustment deficiencies for any material amount of Tax has Taxes have been asserted asserted, proposed or threatened in writing or assessed by any Governmental Authority against the Company or any of its Subsidiaries that remains unresolved have not been satisfied by payment, settled or unpaidwithdrawn.
(ed) There is In the last three (3) years, there were no material Tax audit audits, investigations, examinations, administrative or other examination judicial proceedings with respect to any Taxes of the Company or any of its Subsidiaries presently and no such audits, investigations, examinations, administrative or judicial proceedings are pending or threatened in progress with respect to writing.
(e) There are no Liens for Taxes on any material Taxes, nor has of the assets of the Company or any of its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions or written requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes than Permitted Liens.
(f) None of the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has made been a request for “controlled corporation” or entered into a closing agreement“distributing corporation” in any distribution occurring during the two-year period ending on the date hereof that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, private letter ruling, advance tax ruling local or similar agreement with any Governmental Authority with respect to Taxes. Neither the Company nor any of its Subsidiaries has made a change of any method of accounting with respect to any Taxesforeign Law).
(g) Neither All material amounts of Tax required to be withheld by the Company nor any and each of its Subsidiaries is a party have been timely withheld and paid over to any Tax indemnification or Tax sharing or similar Tax agreement (other than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes)appropriate Governmental Entity.
(h) Neither the Company nor any of its Subsidiaries has agreed to any extension of time with respect to an assessment or deficiency for material Taxes, which assessment or deficiency has not since been settled, and no such requests are pending.
(i) is liable for Taxes of any other Person (other than Neither the Company and nor any of its Subsidiaries) Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return under Treasury Regulation Section 1.1502-6 or any similar provision of U.S. federal, state, local or foreign Tax Law or as a transferee or successor or by Contract with respect to Taxes for any taxable period for which the statute of limitations has not expired (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is the Company or any one of its SubsidiariesSubsidiaries was the common parent).
(ij) Within the past three (3) years, no No material written claim has ever been made by any Governmental Authority taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that it the Company or any of its Subsidiaries is or may be subject to taxation in by that jurisdiction.
(jk) There are no material Tax sharing, allocation, indemnification or similar agreements in effect between the Company or any of its Subsidiaries and any other party under which the Company or any of its Subsidiaries is liable for any material Taxes or other claims of any other party (other than agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes, such as leases, vendor and customer agreements, credit agreements, and purchase agreements).
(l) Neither the Company nor any of its Subsidiaries has participated engaged in a any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(km) The Company has not been, is not, and immediately prior to the Share Exchange Closing will not be, treated as an “investment company” within the meaning of Section 368(a)(2)(F) of the Code.
(l) Except as contemplated by this Agreement and the Transactions contemplated hereby, neither Neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken any action or agreed to take any action (or failed to take any action, nor to the knowledge of the Company or any of its Subsidiaries are there any facts or circumstances), that could reasonably be expected to prevent or impede the Transactions Merger and the Second Merger, taken together, from qualifying for as a “reorganization” within the Intended Tax Treatmentmeaning of Section 368(a) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)