Common use of Certain WhiteWave Actions Clause in Contracts

Certain WhiteWave Actions. WhiteWave agrees that, during the period beginning on October 25, 2012 and ending two years following the Distribution, without first obtaining, at WhiteWave’s own expense, (i) a Supplemental Ruling that such action will not result in Distribution Taxes, (ii) a Supplemental Tax Opinion from Tax Counsel selected by WhiteWave that such action will not result in Distribution Taxes that is acceptable to Xxxx Foods in its reasonable discretion, or (iii) the consent of Xxxx Foods to the action proposed to be taken, WhiteWave shall not and shall not permit any WhiteWave Affiliate to: (1) sell all or substantially all of the assets of WhiteWave or any WhiteWave Affiliate or sell, transfer, or issue any stock of a WhiteWave Affiliate (other than a sale, transfer, or issuance to another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free Distribution under Section 355); (2) liquidate or merge WhiteWave or any WhiteWave Affiliate with another entity (other than a liquidation or merger with or into another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free distribution under Section 355), without regard to which party is the surviving entity; (3) transfer any assets of WhiteWave in a transaction described in Section 351 or subparagraph (C) or (D) of Section 368(a)(1) of the Code (other than a transfer to a corporation, including any entity that is a disregarded entity for federal income tax purposes, which files a consolidated return with WhiteWave and which is wholly-owned, directly or indirectly, by WhiteWave); (4) subject to Section 4.2(f), issue stock of WhiteWave (or any instrument that is convertible or exchangeable into any such stock) (excluding any issuance pursuant to the exercise of employee stock options or other employment-related arrangements having customary terms and conditions and that satisfy the requirements of Safe Harbor VIII as set forth in Treasury Regulations § 1.355-7(d)(8) (“Option Issuances”)), which would result in the acquisition by one or more persons of more than the Applicable Percentage (by vote or value) of the stock of WhiteWave, determined under the principles of Section 355(e) of the Code, when aggregated with all issuances, redemptions, sales or other acquisitions of WhiteWave stock during such period, excluding (i) the issuance of shares in the IPO, (ii) any transfer by the Xxxx Foods Group permitted pursuant to Section 4.6 of the Separation and Distribution Agreement, (iii) Option Issuances, (iv) acquisitions in the public market that satisfy the requirements of Safe Harbor VII as set forth in Treasury Regulations § 1.355-7(d)(7), and (v) an issuance or other acquisition for which a Supplemental Ruling or a Supplemental Tax Opinion has been obtained that such issuance or acquisition will not be treated as part of a plan with the Distribution under one of the safe harbors set forth in Treasury Regulation §1.355-7(d); (5) facilitate or otherwise participate in any acquisition of stock in WhiteWave that would result in any shareholder owning five percent (5%) or more of the outstanding stock of WhiteWave; (6) redeem or repurchase WhiteWave stock in a manner contrary to the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to its modification by Revenue Procedure 2003-48 and as may be modified or amended from time to time) or in any other manner contrary to the representations made in any Representation Letter, Ruling Documents, or Supplemental Ruling Documents; or (7) discontinue, cease, transfer or dispose of its active trades or businesses as defined for purposes of Section 355. WhiteWave or any WhiteWave Affiliate shall only undertake any of such actions after Xxxx Foods’s receipt of such Supplemental Tax Opinion or Supplemental Ruling and pursuant to the terms and conditions of any such Supplemental Tax Opinion or Supplemental Ruling or as otherwise consented to in writing in advance by Xxxx Foods. Xxxx Foods agrees to cooperate with WhiteWave to seek to obtain, as expeditiously as possible, a Supplemental Ruling or Supplemental Tax Opinion for the purpose of permitting WhiteWave to undertake any of such actions. The parties hereby agree that they will act in good faith to take all reasonable steps necessary to amend this Section 4.2(c), from time to time, by mutual agreement, to (A) add certain actions to the list contained herein, or (B) remove certain actions from the list contained herein, in either case, in order to reflect any relevant change in law, regulation or administrative interpretation occurring after October 25, 2012. Nothing in this Section 4.2(c) shall limit the liability of WhiteWave for any Distribution Taxes that are WhiteWave’s responsibility under the terms of this Agreement.

Certain WhiteWave Actions. WhiteWave agrees that, during the period beginning on October 25, 2012 the date hereof and ending two years following the Distribution, without first obtaining, at WhiteWave’s own expense, (i) a Supplemental Ruling that such action will not result in Distribution Taxes, (ii) a Supplemental Tax Opinion from Tax Counsel selected by WhiteWave that such action will not result in Distribution Taxes that is acceptable to Xxxx Foods in its reasonable discretion, or (iii) the consent of Xxxx Foods to the action proposed to be taken, WhiteWave shall not and shall not permit any WhiteWave Affiliate to: (1) sell all or substantially all of the assets of WhiteWave or any WhiteWave Affiliate or sell, transfer, or issue any stock of a WhiteWave Affiliate (other than a sale, transfer, or issuance to another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free Distribution under Section 355); (2) liquidate or merge WhiteWave or any WhiteWave Affiliate with another entity (other than a liquidation or merger with or into another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free distribution under Section 355), without regard to which party is the surviving entity; (3) transfer any assets of WhiteWave in a transaction described in Section 351 or subparagraph (C) or (D) of Section 368(a)(1) of the Code (other than a transfer to a corporation, including any entity that is a disregarded entity for federal income tax purposes, which files a consolidated return with WhiteWave and which is wholly-owned, directly or indirectly, by WhiteWave); (4) subject to Section 4.2(f), issue stock of WhiteWave (or any instrument that is convertible or exchangeable into any such stock) (excluding any issuance pursuant to the exercise of employee stock options or other employment-related arrangements having customary terms and conditions and that satisfy the requirements of Safe Harbor VIII as set forth in Treasury Regulations § 1.355-7(d)(8) (“Option Issuances”)), which would result in the acquisition by one or more persons of more than the Applicable Percentage (by vote or value) of the stock of WhiteWave, determined under the principles of Section 355(e) of the Code, when aggregated with all issuances, redemptions, sales or other acquisitions of WhiteWave stock during such period, excluding (i) the issuance of shares in the IPO, (ii) any transfer by the Xxxx Foods Group permitted pursuant to Section 4.6 of the Separation and Distribution AgreementAgreement , (iii) Option Issuances, (iv) acquisitions in the public market that satisfy the requirements of Safe Harbor VII as set forth in Treasury Regulations § 1.355-7(d)(7), and (v) an issuance or other acquisition for which a Supplemental Ruling or a Supplemental Tax Opinion has been obtained that such issuance or acquisition will not be treated as part of a plan with the Distribution under one of the safe harbors set forth in Treasury Regulation §1.355-7(d); (5) facilitate or otherwise participate in any acquisition of stock in WhiteWave that would result in any shareholder owning five percent (5%) or more of the outstanding stock of WhiteWave; (6) redeem or repurchase WhiteWave stock in a manner contrary to the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to its modification by Revenue Procedure 2003-48 and as may be modified or amended from time to time) or in any other manner contrary to the representations made in any Representation Letter, Ruling Documents, or Supplemental Ruling Documents; or (7) discontinue, cease, transfer or dispose of its active trades or businesses as defined for purposes of Section 355. WhiteWave or any WhiteWave Affiliate shall only undertake any of such actions after Xxxx Foods’s receipt of such Supplemental Tax Opinion or Supplemental Ruling and pursuant to the terms and conditions of any such Supplemental Tax Opinion or Supplemental Ruling or as otherwise consented to in writing in advance by Xxxx Foods. Xxxx Foods agrees to cooperate with WhiteWave to seek to obtain, as expeditiously as possible, a Supplemental Ruling or Supplemental Tax Opinion for the purpose of permitting WhiteWave to undertake any of such actions. The parties hereby agree that they will act in good faith to take all reasonable steps necessary to amend this Section 4.2(c), from time to time, by mutual agreement, to (A) add certain actions to the list contained herein, or (B) remove certain actions from the list contained herein, in either case, in order to reflect any relevant change in law, regulation or administrative interpretation occurring after October 25, 2012. Nothing in this Section 4.2(c) shall limit the liability of WhiteWave for any Distribution Taxes that are WhiteWave’s responsibility under the terms of this Agreement.such

Certain WhiteWave Actions. WhiteWave agrees that, during the period beginning on October 25, 2012 the date hereof and ending two years following the Distribution, without first obtaining, at WhiteWave’s own expense, (i) a Supplemental Ruling that such action will not result in Distribution Taxes, (ii) a Supplemental Tax Opinion from Tax Counsel selected by WhiteWave that such action will not result in Distribution Taxes that is acceptable to Xxxx Foods in its reasonable discretion, or (iii) the consent of Xxxx Foods to the action proposed to be taken, WhiteWave shall not and shall not permit any WhiteWave Affiliate to: (1) sell all or substantially all of the assets of WhiteWave or any WhiteWave Affiliate or sell, transfer, or issue any stock of a WhiteWave Affiliate (other than a sale, transfer, or issuance to another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free Distribution under Section 355); (2) liquidate or merge WhiteWave or any WhiteWave Affiliate with another entity (other than a liquidation or merger with or into another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free distribution under Section 355), without regard to which party is the surviving entity; (3) transfer any assets of WhiteWave in a transaction described in Section 351 or subparagraph (C) or (D) of Section 368(a)(1) of the Code (other than a transfer to a corporation, including any entity that is a disregarded entity for federal income tax purposes, which files a consolidated return with WhiteWave and which is wholly-owned, directly or indirectly, by WhiteWave); (4) subject to Section 4.2(f), issue stock of WhiteWave (or any instrument that is convertible or exchangeable into any such stock) (excluding any issuance pursuant to the exercise of employee stock options or other employment-related arrangements having customary terms and conditions and that satisfy the requirements of Safe Harbor VIII as set forth in Treasury Regulations § 1.355-7(d)(8) (“Option Issuances”)), which would result in the acquisition by one or more persons of more than the Applicable Percentage (by vote or value) of the stock of WhiteWave, determined under the principles of Section 355(e) of the Code, when aggregated with all issuances, redemptions, sales or other acquisitions of WhiteWave stock during such period, excluding (i) the issuance of shares in the IPO, (ii) any transfer by the Xxxx Foods Group permitted pursuant to Section 4.6 of the Separation and Distribution AgreementAgreement , (iii) Option Issuances, (iv) acquisitions in the public market that satisfy the requirements of Safe Harbor VII as set forth in Treasury Regulations § 1.355-7(d)(7), and (v) an issuance or other acquisition for which a Supplemental Ruling or a Supplemental Tax Opinion has been obtained that such issuance or acquisition will not be treated as part of a plan with the Distribution under one of the safe harbors set forth in Treasury Regulation §1.355-7(d); (5) facilitate or otherwise participate in any acquisition of stock in WhiteWave that would result in any shareholder owning five percent (5%) or more of the outstanding stock of WhiteWave; (6) redeem or repurchase WhiteWave stock in a manner contrary to the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to its modification by Revenue Procedure 2003-48 and as may be modified or amended from time to time) or in any other manner contrary to the representations made in any Representation Letter, Ruling Documents, or Supplemental Ruling Documents; or (7) discontinue, cease, transfer or dispose of its active trades or businesses as defined for purposes of Section 355. WhiteWave or any WhiteWave Affiliate shall only undertake any of such actions after Xxxx Foods’s receipt of such Supplemental Tax Opinion or Supplemental Ruling and pursuant to the terms and conditions of any such Supplemental Tax Opinion or Supplemental Ruling or as otherwise consented to in writing in advance by Xxxx Foods. Xxxx Foods agrees to cooperate with WhiteWave to seek to obtain, as expeditiously as possible, a Supplemental Ruling or Supplemental Tax Opinion for the purpose of permitting WhiteWave to undertake any of such actions. The parties hereby agree that they will act in good faith to take all reasonable steps necessary to amend this Section 4.2(c), from time to time, by mutual agreement, to (A) add certain actions to the list contained herein, or (B) remove certain actions from the list contained herein, in either case, in order to reflect any relevant change in law, regulation or administrative interpretation occurring after October 25, 2012the date of this Agreement. Nothing in this Section 4.2(c) shall limit the liability of WhiteWave for any Distribution Taxes that are WhiteWave’s responsibility under the terms of this Agreement.

Certain WhiteWave Actions. WhiteWave agrees that, during the period beginning on October 25, 2012 the date hereof and ending two years following the Distribution, without first obtaining, at WhiteWave’s own expense, (i) a Supplemental Ruling that such action will not result in Distribution Taxes, (ii) a Supplemental Tax Opinion from Tax Counsel selected by WhiteWave that such action will not result in Distribution Taxes that is acceptable to Xxxx Foods in its reasonable discretion, or (iii) the consent of Xxxx Foods to the action proposed to be taken, WhiteWave shall not and shall not permit any WhiteWave Affiliate to: (1) sell all or substantially all of the assets of WhiteWave or any WhiteWave Affiliate or sell, transfer, or issue any stock of a WhiteWave Affiliate (other than a sale, transfer, or issuance to another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free Distribution under Section 355); (2) liquidate or merge WhiteWave or any WhiteWave Affiliate with another entity (other than a liquidation or merger with or into another member of the WhiteWave Group that would not cause the Distribution to fail to qualify as a tax-free distribution under Section 355), without regard to which party is the surviving entity; (3) transfer any assets of WhiteWave in a transaction described in Section 351 or subparagraph (C) or (D) of Section 368(a)(1) of the Code (other than a transfer to a corporation, including any entity that is a disregarded entity for federal income tax purposes, which files a consolidated return with WhiteWave and which is wholly-owned, directly or indirectly, by WhiteWave); (4) subject to Section 4.2(f), issue stock of WhiteWave (or any instrument that is convertible or exchangeable into any such stock) (excluding any issuance pursuant to the exercise of employee stock options or other employment-related arrangements having customary terms and conditions and that satisfy the requirements of Safe Harbor VIII as set forth in Treasury Regulations § 1.355-7(d)(8) (“Option Issuances”)), which would result in the acquisition by one or more persons of more than the Applicable Percentage (by vote or value) of the stock of WhiteWave, determined under the principles of Section 355(e) of the Code, when aggregated with all issuances, redemptions, sales or other acquisitions of WhiteWave stock during such period, excluding (i) the issuance of shares in the IPO, (ii) the acquisition of shares in any transfer by the Xxxx Foods Group permitted pursuant to Section 4.6 of the Separation and Distribution AgreementAgreement , (iii) Option Issuances, (iv) acquisitions in the public market that satisfy the requirements of Safe Harbor VII as set forth in Treasury Regulations § 1.355-7(d)(7), and (v) an issuance or other acquisition for which a Supplemental Ruling or a Supplemental Tax Opinion has been obtained that such issuance or acquisition will not be treated as part of a plan with the Distribution under one of the safe harbors set forth in Treasury Regulation §1.355-7(d); (5) facilitate or otherwise participate in any acquisition of stock in WhiteWave that would result in any shareholder owning five percent (5%) or more of the outstanding stock of WhiteWave; (6) redeem or repurchase WhiteWave stock in a manner contrary to the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to its modification by Revenue Procedure 2003-48 and as may be modified or amended from time to time) or in any other manner contrary to the representations made in any Representation Letter, Ruling Documents, or Supplemental Ruling Documents; or (7) discontinue, cease, transfer or dispose of its active trades or businesses as defined for purposes of Section 355. WhiteWave or any WhiteWave Affiliate shall only undertake any of such actions after Xxxx Foods’s receipt of such Supplemental Tax Opinion or Supplemental Ruling and pursuant to the terms and conditions of any such Supplemental Tax Opinion or Supplemental Ruling or as otherwise consented to in writing in advance by Xxxx Foods. Xxxx Foods agrees to cooperate with WhiteWave to seek to obtain, as expeditiously as possible, a Supplemental Ruling or Supplemental Tax Opinion for the purpose of permitting WhiteWave to undertake any of such actions. The parties hereby agree that they will act in good faith to take all reasonable steps necessary to amend this Section 4.2(c), from time to time, by mutual agreement, to (A) add certain actions to the list contained herein, or (B) remove certain actions from the list contained herein, in either case, in order to reflect any relevant change in law, regulation or administrative interpretation occurring after October 25, 2012the date of this Agreement. Nothing in this Section 4.2(c) shall limit the liability of WhiteWave for any Distribution Taxes that are WhiteWave’s responsibility under the terms of this Agreement.