Common use of Passive Foreign Investment Company Clause in Contracts

Passive Foreign Investment Company. The Company shall use its commercially reasonable efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor the Investors (or their direct or indirect owners, as applicable) pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor (or its direct or indirect owners, as applicable) pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such an Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any such Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such an Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (the “PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor Preferred Shareholder pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor such Preferred Shareholder pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor Preferred Shareholder with annual financial information in the form to the satisfaction of such Investor Preferred Shareholder as soon as reasonably practicable following the end of each taxable year of such Investor Preferred Shareholder (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any InvestorPreferred Shareholder, provide such Investor Preferred Shareholder with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective StatementStatement or otherwise as may be necessary for its compliance with tax law filing and reporting requirements. In the event that it is determined by the Company’s or such InvestorPreferred Shareholder’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an any Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any such Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries Subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each the Investor of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an the Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such the Investor with annual financial information in the form to requested by the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such the Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any the Investor, provide such the Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such the Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries Subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an any Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an any Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such the Investor with annual financial information in the form to the satisfaction of such the Investor as soon as reasonably practicable following the end of each taxable year of such the Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such the Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such any Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries Subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall (and the Company shall procure that each Group Company shall) use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its and each Group Company’s status as a PFIC, and if the Company is informed by its tax advisors that it or any Group Company has become a PFIC, or that there is a likelihood of the Company or any Group Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an any Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any such Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The To its knowledge after consultation with its Tax advisors, the Company shall use its commercially reasonable efforts to avoid being was not a “passive foreign investment company” (“PFIC”) within the meaning of Section 1297 of the Code (“PFIC”) for the current its taxable year ended December 31, 2015 and any future does not anticipate being a PFIC for its taxable yearyear ending December 31, 2016. The Company shall make due inquiry with its tax Tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Purchaser in writing of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor a Purchaser or any of a Purchaser’s Partners pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor such Purchaser or any of such Purchaser’s Partners pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor Purchaser in a form reasonably requested by Purchaser as soon as reasonably practicable following the end of each taxable year of such Investor the Company (but in no event later than forty-five (45) 90 days following the end of each such taxable year), and shall, upon shall provide the request in writing by any Investor, provide such Investor Purchaser with access to such other information, as is in the Company’s possession and reasonably available, Company information as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election Qualified Electing Fund election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The To its knowledge after consultation with its Tax advisors, the Company shall use its commercially reasonable efforts to avoid being was not a “passive foreign investment company” (“PFIC”) within the meaning of Section 1297 of the Code (“PFIC”) for the current its taxable year ended December 31, 2017 and any future does not anticipate being a PFIC for its taxable yearyear ending December 31, 2018. The Company shall make due inquiry with its tax Tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Purchaser in writing of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor a Purchaser or any of a Purchaser’s Partners pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor such Purchaser or any of such Purchaser’s Partners pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor Purchaser in a form reasonably requested by Purchaser as soon as reasonably practicable following the end of each taxable year of such Investor the Company (but in no event later than forty-five (45) 90 days following the end of each such taxable year), and shall, upon shall provide the request in writing by any Investor, provide such Investor Purchaser with access to such other information, as is in the Company’s possession and reasonably available, Company information as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election Qualified Electing Fund election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its independent tax advisors on at least an annual basis regarding its status as a passive foreign investment company (“PFIC”), and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a substantial likelihood of the Company being classified as a PFIC for any the taxable year, the Company shall promptly notify each the Investor of such status or risklikelihood, as the case may be, in each case no later than within forty-five (45) days following from the end of each taxable year of the Company’s taxable year. In connection conjunction with a “Qualified Electing Fund” election (a “QEF Election”) that is made by an the Investor (or any of its direct or indirect interest holders) pursuant to Section 1295 of the Code or a “Protective Statement” that is filed by an the Investor (or any of its direct or indirect interest holders) pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), upon written request, the Company shall provide such Investor with annual financial information in the form to the satisfaction of such Investor as soon as reasonably practicable (and in any case within sixty (60) days) following the end of each taxable year of such the Investor (but in no event later than forty-five (45) days following and shall provide the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, Company information as may be required under the U.S. Treasury Regulations in each case for purposes of filing U.S. federal income tax returns in connection with such QEF Election Qualified Electing Fund election or Protective Statement. In Subject in all events to the Company’s Amended and Restated Memorandum and Articles of Association, in the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents Investor must include in place between one or more its gross income for a particular taxable year its pro rata share of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, earnings and any profits pursuant to Section 1293 of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use agrees to make a distribution to the Investor in an amount sufficient for the Investor to discharge its commercially reasonable efforts liability for actual taxes incurred by the Investor pursuant to take such actions as are reasonably necessary or advisable, including the amendment Section 1293 of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times Any such distribution made to an Investor will be classified treated as an advance on the liquidation preference amount otherwise payable to such Investor pursuant to the Company’s Amended and Restated Memorandum and Articles of Association, and shall reduce the amount such Investor would otherwise receive thereunder. For purposes of the foregoing Sections 2.12(a) and 2.12(b), if Investor is a corporation (and not as a partnership) partnership or other flow-through entity for U.S. federal income tax purposes and it will not take any action (including be considered to have incurred taxes to the making of any election) inconsistent with extent the direct or indirect interest holders in the Investor incur such classification as a corporationtaxes.

Passive Foreign Investment Company. The Company shall use its commercially reasonable efforts acknowledges that certain Investors (other than the Founders) may be, or may comprise investors that are, U.S. persons and that the U.S. income tax consequences to avoid being those persons of the investment in the Company will be significantly affected by whether the Company and/or any of the entities in which it owns an equity interest at any time is (i) a “passive foreign investment company” (within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended) (a “PFIC”) or (ii) classified as a partnership or a branch for U.S. federal income tax purposes. The Company covenants that it will use, and will cause each of the Subsidiaries to use, commercially reasonable efforts to avoid classification as a PFIC, for the current and year or any future taxable subsequent year. The Company also covenants that as soon as practicable from the end of each taxable year of the Company, the Company shall make due inquiry determine, in consultation with its tax advisors on at least an annual basis regarding its status as a PFICadvisors, and if whether the Company is informed by or any of its tax advisors subsidiaries was a PFIC in such taxable year (including whether any exception to PFIC status may apply). If the Company determines that it any such entity has become a PFICPFIC in such taxable year, or that there is a likelihood of the Company any such entity being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following and as soon as practicable from the end of the Company’s such taxable year. In connection with , and in no event later than sixty (60) days from the end of such taxable year, provide the following information to the Investors: (i) all information reasonably available to the Company to permit the Investor (and holders of its direct or indirect interests) to make a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information in the form (ii) a completed “PFIC Annual Information Statement” pursuant to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than fortyTreasury Regulation Section 1.1295-five (45) days following the end of each such taxable year1(g), and shall(iii) all information reasonably requested to accurately prepare its U.S. tax returns and comply with other reporting requirements. The Company further agrees to make available to the Investors upon reasonable request, upon the request in writing by any Investorbooks and records of the Company and each of the Subsidiaries, and to provide such Investor with access information to such other information, as is in the Investors pertinent to the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election status or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified potential status as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporationPFIC.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there it is a likelihood of likely that the Company being will be classified as a PFIC for any taxable year, the Company shall promptly notify each Investor Shareholder of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the The Company shall provide such Investor its Shareholders with annual financial information in the form to the reasonable satisfaction of such Investor Shareholder as soon as reasonably practicable following the end of each taxable year of such Investor Shareholder (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any InvestorShareholder, provide such Investor Shareholder with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election a qualified electing fund election or Protective Statementother tax filing in respect of the Company’s status of a PFIC. In the event that it is determined by the Company’s or such InvestorShareholder’s tax advisors that the control documents in place between one or more of the Company’s 37 Certain confidential information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA has determined that the information (i) is not material and (ii) would likely cause competitive harm to ADC Therapeutics SA if publicly disclosed. wholly owned subsidiaries and/or Subsidiaries or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does do not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there it is a likelihood of likely that the Company being will be classified as a PFIC for any taxable year, the Company shall promptly notify each Investor of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the The Company shall provide such Investor its Investors with annual financial information in the form to the reasonable satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election a qualified electing fund election or Protective Statementother tax filing in respect of the Company’s status of a PFIC. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries Subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does do not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor the Investors of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such the Investor with annual financial information in the form to the satisfaction of such the Investor as soon as reasonably practicable following the end of each taxable year of such the Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any the Investor, provide such the Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such the Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The To the knowledge of the Company, no Group Company shall use its commercially reasonable efforts to avoid being will be at any time during the calendar year in which the Closing occurs, a “passive foreign investment company” within the meaning of Section 1297 of the Code (a “PFIC”) for the current and any future taxable year). The Group Companies shall use their commercially reasonable efforts to avoid being classified as a PFIC. Each Group Company shall make due inquiry with at least on an annual basis request advice of its tax advisors on at least an annual basis regarding its status as a PFIC, and if the such Group Company is informed by its tax advisors that it has more likely than not become a PFIC, or that there is a more likely than not likelihood of the such Group Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor of such status or risk, as the case may be, in each case no later than forty-five be (45) days following the end of the Company’s taxable year“PFIC Status Notification”). In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to Section 1295 of the Code or a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor with annual financial information to Investor in the form to provided in the satisfaction of such Investor attached PFIC Exhibit (attached hereto as Exhibit A) as soon as reasonably practicable following the end of each taxable year of such the Investor (but in no event later than forty-five (45) 90 days following the end of each such taxable year), and shall, upon the request in writing by any Investor, shall provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, Group Company information as may be reasonably required for purposes of filing U.S. federal income tax returns in connection with such QEF Election Qualified Electing Fund election or Protective StatementStatement (the “PFIC Information Notification”). In the event that it is determined by an Investor who has made a “Qualified Electing Fund” election (and has delivered to the Company evidence of such election in a form reasonably satisfactory to the Company’s or such Investor’s tax advisors that the control documents ) must include in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any its gross income for a particular taxable year its pro rata share of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company Companies’ earnings and profits pursuant to look through the Group Companies to their assets and income for purposes Section 1293 of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documentsagrees, to qualify for the extent permitted by law, to make a dividend distribution to such look-through treatment Investor (no later than 90 days following the end of the Investor’s taxable year or, if later, 90 days after the Company is informed by Investor that Investor has been required to recognize such an income inclusion) in an amount equal to the amount of its pro rata share of the Group Companies under Companies’ earnings and profits pursuant to Section 1293 of the PFIC rules Code included by such Investor multiplied by the maximum marginal rate of federal, state and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal local income tax purposes and will not take any action (including the making applicable to such income to a hypothetical resident of any election) inconsistent New York City with respect to such classification as a corporationincome.

Passive Foreign Investment Company. The Company shall, and shall cause its direct or indirect subsidiaries to, use its commercially reasonable best efforts to avoid being ensure that the Company and its direct or indirect subsidiaries arrange their affairs, including taking such restructuring steps as may be necessary, to implement the most tax-advantageous structure for the Company, its direct or indirect United States based shareholders (including without limitation the United States based Purchasers and their direct or indirect investors), subsidiaries and prospective investors who may acquire shares of the Company in the IPO, including, without limitation, to ensure that the Company will not be treated or classified as a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) as defined in Section 1297 of the Internal Revenue Code of 1986, U.S.A., as amended (the “Code”), for the current and or any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFICnot, and if shall cause its direct or indirect subsidiaries not to, take any action or steps that would result in the occurrence of any adverse tax impact on any United States based Purchaser. Upon a determination by the Company, any United States based Purchaser (or any direct or indirect investor in a United States based Purchaser) or any taxing authority that the Company or any direct or indirect subsidiary has been or is informed by its tax advisors that it has likely to become a PFIC, or that there is PFIC as defined in the Code for a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall will promptly notify each Investor United States based Purchaser of such status or risk, determination and will provide as the case may be, soon as practicable (but in each case no event later than forty-five ninety (4590) days following the end of the Company’s such taxable year. In connection ) any United States based Purchaser with all information reasonably available to the Company or any of its subsidiaries to permit such United States based Purchaser (and its direct or indirect investors, as applicable) to (a) accurately prepare all tax returns and comply with any reporting requirements as a result of such determination, (b) make any election (including, without limitation, a “Qualified Electing Fundqualified electing fund” election (a “QEF Election”) made by an Investor under Section 1295 of the Code), with respect to the Company and/or any of its direct or indirect subsidiaries, and comply with any reporting or other requirements incident to such election, (c) file a “protective statement” pursuant to Section 1295 of the Code with respect to the Company and/or any of its direct or indirect subsidiaries, and comply with any reporting or other requirements incident to such statement. Upon request from a United States based Purchaser, the Company shall, and shall cause its direct and indirect subsidiaries to, provide such United States based Purchaser (for the benefit of such United States based Purchaser’s direct or indirect investors, as applicable) with accurately completed “Protective Statement” filed PFIC Annual Information Statements”, substantially in the form attached hereto as Exhibit D, as required by an Investor pursuant to Treasury Regulation Section 1.1295-31(g) and otherwise comply with applicable Treasury Regulation requirements, or “Annual Intermediary Statements”, as amended requested by the United States based Purchaser. The Company will promptly notify the United States based Purchasers of any assertion by the Internal Revenue Service that the Company or any of its direct or indirect subsidiaries is, or is likely to become, a PFIC. The Company shall use its commercially reasonable efforts, to the extent of its available cash and to the extent allowable by law, pay the shareholders of the Company a dividend sufficient to enable any United States based Purchasers (or any successor thereto), the Company shall provide such Investor with annual financial information in the form their equity holders) who have made a QEF Election to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investor, provide such Investor with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing defray their U.S. federal income tax returns in connection with liabilities arising from such QEF Election or Protective StatementElection. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow Should the Company or any direct or indirect subsidiary be determined to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Codebe a PFIC, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documentsefforts, to qualify for such look-through treatment the extent of its available cash and to the Group Companies under extent allowable by law, pay the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as Purchasers a corporation (and not as a partnership) for dividend sufficient to defray their additional U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with liabilities arising from such classification as a corporationdetermination.

Passive Foreign Investment Company. The Company shall use shall, within forty sixty (60) days after the end of any taxable year during which (x) the Company or any of its commercially reasonable efforts subsidiaries was not a CFC for all or any portion of such taxable year or (y) the Company or any of its subsidiaries was a CFC and the Investor was not a U.S. Shareholder thereof for all or any portion of such taxable year (in each case, as determined and mutually agreed to avoid being by the Company and the Investor in accordance with Section 7.4), (a) notify the Investor in writing of its good faith belief, based on the information available to the Company and due inquiry with its tax advisors, as to whether the Company or any of its subsidiaries is a “passive foreign investment company” (“PFIC”) (within the meaning of Section 1297 of the Code (“PFIC”Code) for such taxable year with respect to the Investor or is reasonably likely to become a PFIC with respect to the Investor for the current and taxable year or any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFICyears, and if (b) upon written request of the Investor, provide (or cause to be provided) to the Investor, such information as is in its possession and available to it as may be requested by the Investor to timely assist the Investor in determining whether the Company or any of its subsidiaries was a PFIC with respect to the Investor at any time during such taxable year or is informed by its tax advisors that it has reasonably likely to become a PFIC, PFIC with respect to the Investor for the current taxable year or that there is a likelihood of any future taxable years. If the Company being classified as or any of its subsidiaries is a PFIC for any taxable yearyear with respect to the Investor, the Company shall promptly notify each Investor of such status provide (or riskcause to be provided) to the Investor, as the case may be, in each case no later than forty-five within sixty (4560) days following after the end of the Company’s such taxable year. In connection , (a) such information as the Investor may request to allow the Investor to timely comply with all applicable United States federal, state, and local tax laws (including elections available to the Investor), tax reporting requirements, and income tax return filing obligations, including but not limited to Internal Revenue Service Form 8621, and (b) such statements, information and documentation as the Investor may request to allow the Investor to timely make an election to treat the Company or any of its subsidiaries as a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor pursuant to under Section 1295 of the Code or timely file a “Protective Statement” filed by an Investor pursuant to Treasury Regulation Regulations Section 1.1295-3, as amended (or any successor thereto). In connection with a QEF Election made by the Investor or a Protective Statement filed by the Investor, the Company shall provide such Investor with annual financial information in the form (including but not limited to information required under Treasury Regulations Section 1.1295-1(g)) to the satisfaction of such Investor as soon as reasonably practicable following the end of each taxable year of such Investor (but in no event later than forty-five sixty (4560) days following the end of each such taxable year), and shall, upon shall provide the request in writing by any Investor, provide such Investor with access to such other informationinformation of the Company and its subsidiaries as the Investor may request to allow the Investor to timely comply with all applicable United States federal, as is in the Company’s possession state, and reasonably availablelocal tax laws, as may be required for purposes of filing U.S. federal tax reporting requirements, and income tax returns return filing obligations in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investor’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.

Passive Foreign Investment Company. The Company shall use its commercially reasonable best efforts to avoid being a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) for the current and any future taxable year. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if the Company is informed by its tax advisors that it has become a PFIC, or that there is a likelihood of the Company being classified as a PFIC for any taxable year, the Company shall promptly notify each Investor Preferred Shareholder of such status or risk, as the case may be, in each case no later than forty-five (45) days following the end of the Company’s taxable year. In connection with a “Qualified Electing Fund” election (a “QEF Election”) made by an Investor a Preferred Shareholder pursuant to Section 1295 of the Code or a “Protective Statement” filed by an such Investor pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), the Company shall provide such Investor Preferred Shareholder with annual financial information in the form to the satisfaction of such Investor Preferred Shareholder as soon as reasonably practicable following the end of each taxable year of such Investor Preferred Shareholder (but in no event later than forty-five (45) days following the end of each such taxable year), and shall, upon the request in writing by any Investorsuch Preferred Shareholder, provide such Investor Preferred Shareholder with access to such other information, as is in the Company’s possession and reasonably available, as may be required for purposes of filing U.S. federal income tax returns in connection with such QEF Election or Protective Statement. In the event that it is determined by the Company’s or such Investora Preferred Shareholder’s tax advisors that the control documents in place between one or more of the Company’s wholly owned subsidiaries Subsidiaries and/or the Company, on the one hand, and any of the Group Companies organized in the PRC that is not a wholly foreign owned enterprise, on the other hand, does not allow the Company to look through the Group Companies to their assets and income for purposes of the PFIC rules and regulations under the Code, the Company shall use its commercially reasonable best efforts to take such actions as are reasonably necessary or advisable, including the amendment of such control documents, to qualify for such look-through treatment of the Group Companies under the PFIC rules and regulations under the Code. The Company is currently and at all times will be classified as a corporation (and not as a partnership) for U.S. federal income tax purposes and will not take any action (including the making of any election) inconsistent with such classification as a corporation.