Common use of Conditions to the External Distribution Clause in Contracts

Conditions to the External Distribution. (a) The consummation of the External Distribution will be subject to the satisfaction, or waiver by Parent in its sole and absolute discretion, of the following conditions: (i) The SEC shall have declared effective the Form 10; no order suspending the effectiveness of the Form 10 shall be in effect; and no proceedings for such purposes shall have been instituted or threatened by the SEC. (ii) The Information Statement shall have been made available to the Record Holders. (iii) Parent shall have received (A) a private letter ruling from the IRS, acceptable to Parent in form and substance in Parent’s sole discretion, regarding the qualification of the External Distribution, together with certain related transactions, as a transaction that is generally tax-free, for U.S. federal income tax purposes, under Sections 355 and 368(a)(1)(D) of the Code and certain other U.S. federal income tax matters relating to the Separation and the External Distribution, which shall not have been revoked or modified in any material respect and (B) an opinion from Wachtell, Lipton, Xxxxx & Xxxx, acceptable to Parent in form and substance in Parent’s sole discretion, with respect to certain tax matters relating to the qualification of the External Distribution, together with certain related transactions, as a transaction described in Sections 355 and 368(a)(1)(D) of the Code. (iv) An independent appraisal firm acceptable to Parent shall have delivered one or more opinions, at the time or times requested by the Parent Board, confirming the solvency and financial viability of Parent prior to the External Distribution and of Parent and SpinCo after consummation of the External Distribution, and such opinions shall be acceptable to Parent in form and substance in Parent’s sole discretion and such opinions shall not have been withdrawn or rescinded. (v) The transfer of the SpinCo Assets (other than any Delayed SpinCo Asset) and SpinCo Liabilities (other than any Delayed SpinCo Liability) contemplated to be transferred from Parent to SpinCo at or prior to the Effective Time shall have occurred as contemplated by Section 2.1, and the transfer of the Parent Assets (other than any Delayed Parent Asset) and Parent Liabilities (other than any Delayed Parent Liability) contemplated to be transferred from SpinCo to Parent on or prior to the Distribution Date shall have occurred as contemplated by Section 2.1, in each case pursuant to the Separation Step Plan. (vi) The actions and filings necessary or appropriate under applicable U.S. federal, U.S. state or other securities Laws or blue sky Laws and the rules and regulations thereunder shall have been taken or made, and, where applicable, have become effective or been accepted by the applicable Governmental Authority. (vii) Each of the Ancillary Agreements shall have been duly executed and delivered by the applicable parties thereto. (viii) No order, injunction or decree issued by any Governmental Authority of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Separation, the External Distribution or any of the transactions related thereto shall be in effect. (ix) The SpinCo Shares to be distributed to the Parent shareholders in the External Distribution shall have been accepted for listing on the NYSE, subject to official notice of distribution. (x) No other events or developments shall exist or shall have occurred that, in the judgment of the Parent Board, in its sole and absolute discretion, makes it inadvisable to effect the Separation, the External Distribution or the transactions contemplated by this Agreement or any Ancillary Agreement. (b) The foregoing conditions are for the sole benefit of Parent and shall not give rise to or create any duty on the part of Parent or the Parent Board to waive or not waive any such condition or in any way limit Parent’s right to terminate this Agreement as set forth in Article IX or alter the consequences of any such termination from those specified in Article IX. Any determination made by the Parent Board prior to the External Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in Section 3.3(a) shall be conclusive and binding on the Parties. If Parent waives any material condition, it shall promptly issue a press release disclosing such fact and file a Current Report on Form 8-K with the SEC describing such waiver.