Returns and Audits. (i) The Company (or Seller on behalf of the Company) has (A) prepared and timely filed all required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to the Company, its assets or its operations (“Company Taxes”), and such Returns are true and correct in all material respects and have been completed in all material respects in accordance with Applicable Law; (B) timely paid all Company Taxes that are due and payable (whether or not shown on any Return); and (C) complied in all material respects with all applicable information return or reporting requirements relating to the assets and business operations of the Company, and neither the Company nor Seller has any liabilities not reflected in the Financial Information concerning or attributable to such information returns or reporting requirements. Neither the Company nor Seller (on behalf of the Company) has incurred any liability for Company Taxes since March 31, 2014 other than in the ordinary course of business, other than with respect to employment Taxes arising in connection with the transactions contemplated by this Agreement. (ii) The Company (or Seller on behalf of the Company) has withheld and paid with respect to the Employees, the Company’s members and creditors and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Company Taxes required to be paid or withheld, and has timely paid over any such Taxes to the appropriate authorities. (iii) Neither the Company nor Seller has been delinquent in the payment of any Company Tax, nor is there any Company Tax deficiency outstanding, assessed or proposed in writing against the Company or Seller, nor has the Company or Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Company Tax. (iv) No audit or other examination of any Return of or with respect to the Company is presently in progress, nor has the Company or Seller been notified in writing of any request for such an audit or other examination, and neither the Company nor Seller has any Knowledge that any such action or proceeding is being contemplated. No adjustment relating to any Return filed by or with respect to the Company has been proposed in writing by any Taxing Authority. There are no matters relating to Company Taxes currently under discussion between any Taxing Authority and the Company or Seller. (v) The Company or Seller has Made Available to Parent copies of all material Returns that have been filed by or with respect to the Company on or after January 1, 2009, but excluding any such Return of any group of which Seller is the common parent that includes the Company (e.g., Seller’s U.S. federal income tax Return). Subject to the preceding exclusion, Company or Seller has made available to Parent copies of all other Returns requested in writing by Parent. (vi) No claim has been made in writing on or after January 1, 2009 (or to the Knowledge of the Company or Seller, prior to such date) by a Taxing Authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Returns. (vii) The Company has never (A) been a party to any Tax sharing, indemnification or allocation agreement, other than agreements entered into in the ordinary course of business with customers, vendors and lessors on customary commercial terms the principal purpose of which is unrelated to Taxes, nor does the Company owe any amount under any such agreement, (B) had any liability for the Taxes of any Person (other than the Company) under Treasury Regulation §1.1502-6 (or any similar provision of state, local or non-U.S. law), as a transferee or successor, by Contract, by operation of law or otherwise, or (C) been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes. (viii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or Seller’s membership interests in the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable. There is no reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien for Taxes on the assets of, or membership interests in, the Company. (ix) The Company has not engaged in a “reportable transaction,” as set forth in Treasury Regulation §1.6011-4(b) or any similar provision of state, local or non-U.S. law, 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 Treasury Regulation §1.6011-4(b)(2). (x) The Company is not subject to Tax in any country other than the United States by virtue of having a permanent establishment or other place of business in that country. (xi) The Company has been a disregarded entity for U.S. federal income tax purposes at all times since June 12, 2012.
Appears in 1 contract
Returns and Audits. (i) The Company (or Seller on behalf Except as set forth in Section 3.12(a)(i) of the Company) Disclosure Schedule, the Company has (A) prepared and timely filed all Returns required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Returns”) relating by applicable Law to any and all Taxes concerning or attributable to the Company, its assets or its operations (“Company Taxes”)be filed, and such Returns are true and correct in all material respects and have been completed in all material respects in accordance with Applicable applicable Law; (B) provided, however, that notwithstanding any other provision of this Agreement, the Company makes no representation or warranty as to the amount of, or existence, non-existence or extent of limitations on, the Company’s net operating loss carryforwards, net capital loss carryforwards, tax credit carryforwards or any other Tax attribute. The Company has timely paid all Company Taxes that are due and payable (required to be paid, whether or not shown to be due on any Return); and (C) complied in such Returns to be due. The Company has provided to Buyer copies of all material respects with all applicable information return or reporting requirements relating to the assets and business operations of the Company, and neither Returns for the Company nor Seller has any liabilities not reflected in the Financial Information concerning or attributable to such information returns or reporting requirements. Neither the Company nor Seller (on behalf of the Company) has incurred any liability filed for Company Taxes since March 31, 2014 other than in the ordinary course of business, other than with respect to employment Taxes arising in connection with the transactions contemplated by this Agreementall periods.
(ii) The Company (or Seller on behalf of the Company) has reported, withheld and paid remitted, as applicable, with respect to the Employeesits employees, the Company’s members and creditors shareholders and other third partiesparties and from any related Person, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Company Taxes required to be paid or withheldreported, withheld and remitted, as applicable, and has timely paid over any such Taxes withheld amounts to the appropriate authorities.
(iii) Neither the The Company nor Seller has been delinquent not had any delinquencies in the payment of any Company Tax, Tax that have not been completely and satisfactorily resolved; nor is there any Company Tax deficiency outstanding, assessed or proposed in writing against the Company or SellerCompany, nor has the Company or Seller executed any waiver of any statute of limitations on on, or extending the period for the assessment or collection of, any Tax (other than pursuant to extensions of any time to file Returns in the ordinary course of business). There are no Liens on the assets of the Company Taxrelating or attributable to Taxes, other than Liens for Taxes not yet due and payable.
(iv) No audit or other examination of any Return of or with respect to the Company is presently currently in progress, nor has the Company or Seller been notified in writing of any request for such an audit or other examination, and neither the Company nor Seller has any Knowledge that any such action or proceeding is being contemplated. No adjustment relating to any Return filed by or with respect to the Company has been proposed in writing by any Taxing Authority. There are no matters relating to Company Taxes currently under discussion between any Taxing Authority and the Company or Seller.
(v) The Company or Seller has Made Available to Parent copies of all material Returns that have been filed by or with respect tax authority to the Company on or after January 1, 2009, but excluding any such Return of any group of which Seller is the common parent that includes the Company (e.g., Seller’s U.S. federal income tax Return)Company. Subject to the preceding exclusion, Company or Seller has made available to Parent copies of all other Returns requested in writing by Parent.
(vi) No claim has ever been made in writing on or after January 1, 2009 (or to the Knowledge of the Company or Seller, prior to such date) by a Taxing Authority that the Company is or may be subject to taxation in by a jurisdiction in which it does not file Returnsa Return.
(viiv) The Company has never (A) been a party to any Tax sharingAs of the Balance Sheet Date, indemnification or allocation agreement, other than agreements entered into in the ordinary course of business with customers, vendors and lessors on customary commercial terms the principal purpose of which is unrelated to Taxes, nor does the Company owe any amount under any such agreementhad no Liabilities for unpaid Taxes that had not been accrued or reserved on the Current Balance Sheet, (B) had any liability for the Taxes of any Person (other than the Company) under Treasury Regulation §1.1502-6 (whether asserted or any similar provision of stateunasserted, local or non-U.S. law), as a transferee or successor, by Contract, by operation of law contingent or otherwise, or (C) been a party to any joint venture, partnership or other arrangement that could . There will be treated as a partnership no Liabilities for Tax purposes.
(viii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or Seller’s membership interests in the Company relating or Taxes attributable to Taxes other than Liens for Taxes the period between the Balance Sheet Date and the Closing Date that have not yet due and payable. There is no reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien for Taxes on the assets of, or membership interests in, been paid by the Company.
(ixvi) The Company has not engaged in a “reportable transaction,” as set forth in Treasury Regulation §1.6011-4(band the Sellers (with respect to their holdings of Company Share Capital) or any similar provision of state, local or non-U.S. law, 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 Treasury Regulation §1.6011-4(b)(2).
(x) The Company is are not subject to Tax in any country other than restrictions or limitations pursuant to Part E2 of the United States by virtue ITO or pursuant to any tax ruling made with reference to the provisions of having a permanent establishment or other place of business in that countryPart E2.
(xi) The Company has been a disregarded entity for U.S. federal income tax purposes at all times since June 12, 2012.
Appears in 1 contract
Sources: Purchase Agreement (RR Media Ltd.)
Returns and Audits. (i) The Company (or Seller on behalf Each of the Company) Seller, the Company and all of its Subsidiaries has (A) prepared and timely filed all required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (including any amendments thereof or attachments or schedules thereto or claims for refund) or other information required to be supplied to any Tax Authority (“Returns”) relating required to any and all Taxes concerning or attributable to the Company, its assets or its operations (“Company Taxes”), be filed by it and such Returns are true true, complete and correct in all material materials respects and have been completed in all material respects in accordance with Applicable applicable Law; , and (B) timely paid all Company Taxes that are due and payable it is required to pay (whether or not shown on any a Return); and (C) complied in all material respects with all applicable information return or reporting requirements relating to the assets and business operations of the Company, and neither the Company nor Seller has any liabilities not reflected in the Financial Information concerning or attributable to such information returns or reporting requirements. Neither the Company nor Seller (on behalf of the Company) has incurred any liability for Company Taxes since March 31, 2014 other than in the ordinary course of business, other than with respect to employment Taxes arising in connection with the transactions contemplated by this Agreement.
(ii) The Company (or Seller on behalf Each of the Company) Seller, the Company and its Subsidiaries has withheld registered with all appropriate Tax Authorities and paid has duly and timely reported, withheld, and remitted, as applicable, with respect to the their respective Employees, the Company’s members and creditors shareholders and other third partiesPersons, all U.S. federalemployment, state and non-U.S. income Taxes and social security charges withholding and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Company Taxes required to be paid or withheld, and has timely paid over any such Taxes to the appropriate authoritiesTaxes.
(iii) Neither the Company nor Seller has been delinquent in the payment of any Company Tax, nor There is there any Company no Tax deficiency outstanding, assessed or proposed in writing against the Seller, the Company or Sellerany of its Subsidiaries, nor has the Seller, the Company or Seller any of its Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Company Tax.
(iv) No audit or other examination of any Return of or with respect to the Seller, the Company or any of its Subsidiaries is presently in progress, nor has the Seller, the Company or Seller any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and neither the Company nor Seller has any no Knowledge that any such action or proceeding is being contemplated. No adjustment relating to any Return filed by or with respect to claim has ever been made that the Company has been proposed in writing by any Taxing Authority. There are no matters relating to Company Taxes currently under discussion between any Taxing Authority and Seller, the Company or Seller.
(v) The Company or Seller has Made Available to Parent copies any of all material Returns that have been filed by or with respect to the Company on or after January 1, 2009, but excluding any such Return of any group of which Seller is the common parent that includes the Company (e.g., Seller’s U.S. federal income tax Return). Subject to the preceding exclusion, Company or Seller has made available to Parent copies of all other Returns requested in writing by Parent.
(vi) No claim has been made in writing on or after January 1, 2009 (or to the Knowledge of the Company or Seller, prior to such date) by a Taxing Authority that the Company its Subsidiaries is or may be subject to taxation in a jurisdiction in which where it does not file Returns. No adjustment relating to any Return filed by the Seller, the Company or any of its Subsidiaries has been proposed by any Tax Authority to the Company or any representative thereof. Neither the Seller (with respect to the Company), the Company nor any of its Subsidiaries is a party to or bound by any closing or other agreement or ruling with any Tax Authority. There are no matters relating to Taxes under discussion between any Tax Authority and the Seller (with respect to the Company) or the Company or any of its Subsidiaries.
(v) Neither the Company nor any of its Subsidiaries has any Liabilities for unpaid Taxes as of the Balance Sheet Date which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent copies of all federal and state income and other material Returns for the Company, all of its Subsidiaries and the Seller filed for all periods for which the applicable statute of limitations has not expired.
(vii) The Company has never (A) been a party to any Tax sharing, indemnification or allocation agreement, other than agreements entered into in the ordinary course of business with customers, vendors and lessors on customary commercial terms the principal purpose of which is unrelated to Taxes, nor does the Company owe any amount under any such agreement, (B) had any liability for the Taxes of any Person (other than the Company) under Treasury Regulation §1.1502-6 (or any similar provision of state, local or non-U.S. law), as a transferee or successor, by Contract, by operation of law or otherwise, or (C) been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(viii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or Seller’s membership interests in the Company any of its Subsidiaries relating or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes. There is no reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien for Taxes on the assets of, of the Company or membership interests inany of its Subsidiaries.
(viii) Neither the Seller, the CompanyCompany nor any of its Subsidiaries has engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b).
(ix) The Neither the Company nor any of its Subsidiaries has not engaged in (A) ever been a “reportable transaction,” as set forth in Treasury Regulation §1.6011member of an affiliated group within the meaning of Section 1504(a) of the Code filing a consolidated income Return, (B) ever been a party to or bound by, or had any obligation under, any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) any Liability for the Taxes of any person under Treas. Reg. § 1.1502-4(b) 6 (or any similar provision of state, local or non-U.S. lawforeign Law, including any transaction that is the same arrangement for group or consortium relief or similar arrangement), as a transferee or substantially similar successor, by Contract, by operation of Law, or otherwise, and (D) ever been a party to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by noticeany joint venture, regulation partnership or other form of published guidance agreement that could be treated as a listed transaction as set forth in Treasury Regulation §1.6011-4(b)(2)partnership for Tax purposes.
(x) The Seller has duly elected to be treated as an S corporation pursuant to Section 1362(a) of the Code and the Laws of each state and other jurisdiction in which the Seller conducts business or could otherwise be subject to income Taxes as of January 1, 2010 (or, in the case of any state election, as of the later of such date or the first date on which the Company became subject to income taxes in such state). The Company has duly and timely elected to be treated as a “qualified subchapter S subsidiary” of the Seller pursuant to Section 1361(a) of the Code from the date of its formation or has otherwise been during its existence disregarded as separate from Seller for U.S. federal income tax purposes. Each of these elections was effective when initially made and is currently effective (without regard to the transactions contemplated by this Agreement). The Seller has at all times satisfied the requirements to qualify as an S corporation under Section 1361(a) of the Code, and no event has occurred (or fact has existed) that would preclude the Seller from qualifying as an S corporation under Section 1361(a) or which would terminate the Seller’s S corporation status or the Company’s qualified subchapter S subsidiary status (other than the transaction contemplated by this Agreement). No Governmental Authority has challenged the effectiveness of any of these elections.
(xi) The Seller has no potential liability under Section 1374 of the Code with respect to the assets of the Company or any of its Subsidiaries. The Seller has not in the past ten (10) years, (i) acquired or caused the Company or any of its Subsidiaries to acquire assets from another corporation in a transaction in which the Seller’s tax basis for the acquired assets was determined, in whole or in part, by reference to the tax basis of the acquired assets (or any other property) in the hands of the transferor or (ii) acquired the stock of any corporation that is a qualified subchapter S subsidiary other than the Company.
(xii) The Seller uses the accrual method of accounting for income Tax purposes.
(xiii) Neither the Company nor any of its Subsidiary is subject to Tax in any country other than the United States its country of incorporation or formation by virtue of having a permanent establishment or other establishment, place of business or source of income in that country.
(xi) . The Company has been a disregarded entity for U.S. federal income tax purposes and all of its Subsidiaries are and have at all times since June 12, 2012been resident for Tax purposes in their country of incorporation or formation and are not and have not at any time been treated as resident in any other country for any Tax purpose (including any arrangement for the avoidance of double taxation). Neither the Company nor any of its Subsidiaries is liable for any Tax as the agent of any other Person nor constitutes a permanent establishment or place of business of any other Person for any Tax purpose.
Appears in 1 contract