Common use of Liability for Separation Tax Losses Clause in Contracts

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c) may have been provided), subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof), (C) any action or failure to act by SpinCo after the Distribution (including, without limitation, any amendment to SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock (including, without limitation, through the conversion of one class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (D) any act or failure to act by SpinCo or any Affiliate of SpinCo described in Section 6.02 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01.

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and and, in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (Cz) of Section 6.02(c6.01(d) may have been obtained or provided), subject to Section 6.05(c6.04(c), SpinCo Adient shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Xxxxxxx Controls and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ the stock and/or or assets of Adient, any Old Xxxxxxx Controls Internal Controlled or any of their respective Affiliates (including any Adient Capital Stock or any Old Xxxxxxx Controls Internal Controlled Capital Stock) by any means whatsoever by any Person, (B) the acquisition (other than pursuant to the Separation Transactions) by Adient or any of its Affiliates of all or a portion of the stock or assets of any “domestic corporation” (within the meaning of Sections 7701(a)(3) and 7701(a)(4) of the Code) or any issuance of stock by Adient or any Old Xxxxxxx Controls Internal Controlled, (C) any negotiations, understandings, agreements or arrangements by SpinCo Adient or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)Old Xxxxxxx Controls Internal Controlled, (CD) any action or failure to act by SpinCo Adient after the Distribution (including, without limitation, any amendment to SpinCoAdient’s or any Old Xxxxxxx Controls Internal Controlled’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock the stock of Adient or any Old Xxxxxxx Controls Internal Controlled (including, without limitation, through the conversion of one class of SpinCo Capital Stock stock into another class of SpinCo Capital Stockstock), or (DE) any act or failure to act by SpinCo Adient or any Adient Affiliate of SpinCo described in Section 6.02 6.01 (regardless whether such act or failure to act is covered by a private letter ruling, Unqualified Tax Opinion or waiver described in clause (z) of Section 6.01(d) and regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion have been permitted at the time it was taken (or waiver described in clause (Cnot taken) pursuant to the penultimate sentence of Section 6.02(c6.01(b)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01).

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c7.02(c) may have been provided), subject to Section 6.05(c7.06(c), SpinCo UpstreamCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Contribution, the Distribution, or any of the other Separation Transactions) of all or a portion of SpinCoUpstreamCo’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo UpstreamCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo UpstreamCo (or any successor thereof), (C) any action or failure to act by SpinCo UpstreamCo after the Distribution (including, without limitation, any amendment to SpinCoUpstreamCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock UpstreamCo stock (including, without limitation, through the conversion of one class of SpinCo UpstreamCo Capital Stock into another class of SpinCo UpstreamCo Capital Stock), (D) any act or failure to act by SpinCo UpstreamCo or any Affiliate of SpinCo UpstreamCo described in Section 6.02 7.02 or Section 7.03 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)7.02(c) or a CFO Certificate) or (E) any breach by SpinCo UpstreamCo of any of its agreements or representations set forth in Section 6.017.01.

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion Opinion, or waiver described in clause (Cx), (y) or (z) of Section 6.02(c6.02(d)(i) may have been provided), but subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Parent, its Affiliates and its Affiliates officers, directors and employees from and against, against one hundred percent (100%) of any Separation Tax Losses that are attributable to or result from any one or more of the following: (Ai) the acquisition (other than pursuant to acquisition, after the Separation Transactions) Effective Time, of all or a portion of SpinCo’s SpinCo Capital Stock and/or its Affiliatessubsidiaries’ stock and/or assets (including any Capital Stock of any Controlled Company) by any means whatsoever by any Person, ; (Bii) any “agreement, understanding, arrangement, or substantial negotiations, understandings, agreements ” (as such terms are defined in Treasury Regulations Section 1.355-7(h)) by any one or arrangements more officers or directors of any member of the SpinCo Group or by SpinCo any other person or any persons with the implicit or explicit permission of its Affiliates with respect to one or more such officers or directors regarding transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution or any of the Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, Capital Stock of SpinCo and/or any Controlled Company, in each case, representing a Fifty-Percent or Greater Interest in SpinCo therein, as applicable; (or any successor thereof), (Ciii) any action or failure to act by SpinCo or any other member of the SpinCo Group after the Distribution (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock and/or the Capital Stock of any Controlled Company (including, without limitation, through the conversion of one class of SpinCo such Capital Stock into another class of SpinCo such Capital Stock), ; (Div) any act or failure to act by SpinCo or any Affiliate other member of the SpinCo Group described in Section 6.02 (regardless of whether such act or failure to act may be is covered by a Post-Distribution Ruling, Unqualified Tax Opinion Opinion, or waiver described in clause (Cx), (y) or (z) of Section 6.02(c)6.02(d)(i) or by a SpinCo CFO Certificate described in Section 6.02(e)); or (Ev) any breach by SpinCo of any of its agreements or representations set forth in Section 6.016.01 (other than Section 6.01(a)).

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and and, in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (Cz) of Section 6.02(c6.01(d) may have been obtained or provided), subject to Section 6.05(c6.04(c), SpinCo Adient shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Xxxxxxx Controls and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ the stock and/or or assets of Adient, any Old Xxxxxxx Controls Internal Controlled or any of their respective subsidiaries (including any Adient Capital Stock or any Old Xxxxxxx Controls Internal Controlled Capital Stock) by any means whatsoever by any Person, (B) the acquisition (other than pursuant to the Separation Transactions) by Adient or any of its Affiliates of all or a portion of the stock or assets of any “domestic corporation” (within the meaning of Sections 7701(a)(3) and 7701(a)(4) of the Code) or any issuance of stock by Adient or any Old Xxxxxxx Controls Internal Controlled, (C) any negotiations, understandings, agreements or arrangements by SpinCo Adient or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)Old Xxxxxxx Controls Internal Controlled, (CD) any action or failure to act by SpinCo Adient after the Distribution (including, without limitation, any amendment to SpinCoAdient’s or any Old Xxxxxxx Controls Internal Controlled’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock the stock of Adient or any Old Xxxxxxx Controls Internal Controlled (including, without limitation, through the conversion of one class of SpinCo Capital Stock stock into another class of SpinCo Capital Stockstock), or (DE) any act or failure to act by SpinCo Adient or any Adient Affiliate of SpinCo described in Section 6.02 6.01 (regardless whether such act or failure to act is covered by a private letter ruling, Unqualified Tax Opinion or waiver described in clause (z) of Section 6.01(d) and regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion have been permitted at the time it was taken (or waiver described in clause (Cnot taken) pursuant to the penultimate sentence of Section 6.02(c6.01(b)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01).

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement, the Separation Agreement or the Separation and Distribution Merger Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b) may have been provided), but subject to Section 6.05(c)2.06 and Section 6.07, SpinCo Acquiror and Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, for any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCoeither or both of Acquiror’s and/or its Affiliates’ Radio’s stock and/or of the Radio Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo either or both of Acquiror and/or Radio or any other member of its Affiliates their respective Groups (provided that, in the case of Radio or any other member of the Radio Group, such negotiations, understandings, agreements or arrangements follow the Merger) with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, that cause any of the Distribution Distributions to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of Acquiror and/or Radio representing a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)therein, as applicable, (C) any action or failure to act by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups (in the case of Radio or any member of the Radio Group, after the Distribution Merger) (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock either or both of Acquiror’s and/or Radio’s stock (including, without limitation, through the conversion of one class of SpinCo Radio Capital Stock or Acquiror Capital Stock into another class of SpinCo Radio Capital Stock or Acquiror Capital Stock, but not including the composition of the Acquiror Board (as defined in the Merger Agreement) as contemplated by Section 7.22(a) of the Merger Agreement), other than entering into the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (D) any act or failure to act by SpinCo either or both of Acquiror and/or Radio or any Affiliate other member of SpinCo described in Section 6.02 their respective Groups that would affect the Tax-Free Status of the Distributions or Merger (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b)) ), other than entering into the Merger, or (E) any breach or inaccuracy by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups of any of its their agreements or representations set forth herein; provided, however, that notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this Section 6.016.04(a), which acquisition is made in the open market by any person (x) who is not (i) a member of the Acquiror Group, (ii) an Affiliate of Acquiror, (iii) an officer or director of Acquiror, (iv) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)) of Acquiror, or (v) any other person acting with the implicit or explicit permission of Acquiror, and (y) who was not solicited to make such acquisition by any person described in subclauses (i), (ii), (iii), (iv) or (v) of this sentence, then Acquiror and Radio shall be responsible for only fifty percent (50%) of any Separation Tax Losses attributable to or resulting from such acquisition.

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c7.02(c) may have been provided), subject to Section 6.05(c7.06(c), GRP&E/BCS SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (Ai) the acquisition (other than pursuant to the Contribution, the External Distribution or any of the other Separation Transactions) of all or a portion of GRP&E/BCS SpinCo’s and/or its Affiliates’ stock Capital Stock and/or assets by any means whatsoever by any Person, (Bii) any negotiations, understandings, agreements agreements, arrangements or arrangements discussions by GRP&E/BCS SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in GRP&E/BCS SpinCo or any Internal Spinco (or any successor thereofof any of them), (Ciii) any action or failure to act by GRP&E/BCS SpinCo after the External Distribution (including, without limitation, any amendment to GRP&E/BCS SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of GRP&E/BCS SpinCo Capital Stock stock (including, without limitation, through the conversion of one class of SpinCo GRP&E/BCS Capital Stock into another class of SpinCo GRP&E/BCS Capital Stock), (Div) any act or failure to act by GRP&E/BCS SpinCo or any Affiliate of GRP&E/BCS SpinCo described in Section 6.02 7.02 or Section 7.03 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)7.02(c) or a CFO Certificate) or (Ev) any breach by GRP&E/BCS SpinCo of any of its agreements or representations set forth in Section 6.017.01, Section 7.02 or Section 7.03.

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d) may have been provided), subject to Section 6.05(c6.04(b), SpinCo Outdoor Americas shall be responsible for, and shall indemnify, defend, and hold harmless Parent CBS and its Affiliates and any CBS Indemnified Party from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation TransactionsContribution, the IPO, or the Distributions) of all or a portion of SpinCoOutdoor Americas’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates Outdoor Americas with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo Outdoor Americas (or any successor thereof)) or any other Controlled Company (or any successor thereof) therein, (C) any action or failure to act by SpinCo Outdoor Americas after the Distribution Split-Off (including, without limitation, any amendment to SpinCo’s Outdoor Americas’ certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock Outdoor Americas stock (including, without limitation, through the conversion of one class of SpinCo Outdoor Americas Capital Stock into another class of SpinCo Outdoor Americas Capital Stock), (D) any act or failure to act by SpinCo Outdoor Americas or any Outdoor Americas Affiliate of SpinCo described in Section 6.02 6.01 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d)) or (E) any breach by SpinCo Outdoor Americas of any of its agreements or representations set forth in Section 6.016.01(a) or Section 6.01(b).

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d)(vii) may have been provided), subject to Section 6.05(c6.04(b), SpinCo Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent CBS and its Affiliates and any CBS Indemnified Party from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation TransactionsIPO or the Distributions) of all or a portion of SpinCoRadio’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates Radio with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo Radio (or any successor thereof), (C) any action or failure to act by SpinCo Radio after the Distribution Split-Off (including, without limitation, any amendment to SpinCo’s Radio’ certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock Radio stock (including, without limitation, through the conversion of one class of SpinCo Radio Capital Stock into another class of SpinCo Radio Capital Stock), (D) any act or failure to act by SpinCo Radio or any Radio Affiliate of SpinCo described in Section 6.02 6.01 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d)(vii)) or (E) any breach by SpinCo Radio of any of its agreements or representations set forth in Section 6.016.01(a) or Section 6.01(b).

Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement, the Separation Agreement or the Separation and Distribution Merger Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b) may have been provided), but subject to Section 6.05(c)2.06 and Section 6.07, SpinCo Acquiror and Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, for any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCoeither or both of Acquiror’s and/or its Affiliates’ Radio’s stock and/or of the Radio Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo either or both of Acquiror and/or Radio or any other member of its Affiliates their respective Groups (provided that, in the case of Radio or any other member of the Radio Group, such negotiations, understandings, agreements or arrangements follow the Merger) with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a Table of Contents series of such transactions or events) ), other than the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, that cause any of the Distribution Distributions to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of Acquiror and/or Radio representing a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)therein, as applicable, (C) any action or failure to act by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups (in the case of Radio or any member of the Radio Group, after the Distribution Merger) (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock either or both of Acquiror’s and/or Radio’s stock (including, without limitation, through the conversion of one class of SpinCo Radio Capital Stock or Acquiror Capital Stock into another class of SpinCo Radio Capital Stock or Acquiror Capital Stock, but not including the composition of the Acquiror Board (as defined in the Merger Agreement) as contemplated by Section 7.22(a) of the Merger Agreement), other than entering into the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (D) any act or failure to act by SpinCo either or both of Acquiror and/or Radio or any Affiliate other member of SpinCo described in Section 6.02 their respective Groups that would affect the Tax-Free Status of the Distributions or Merger (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b)) ), other than entering into the Merger, or (E) any breach or inaccuracy by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups of any of its their agreements or representations set forth herein; provided, however, that notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this Section 6.016.04(a), which acquisition is made in the open market by any person (x) who is not (i) a member of the Acquiror Group, (ii) an Affiliate of Acquiror, (iii) an officer or director of Acquiror, (iv) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)) of Acquiror, or (v) any other person acting with the implicit or explicit permission of Acquiror, and (y) who was not solicited to make such acquisition by any person described in subclauses (i), (ii), (iii), (iv) or (v) of this sentence, then Acquiror and Radio shall be responsible for only fifty percent (50%) of any Separation Tax Losses attributable to or resulting from such acquisition.