Common use of PFIC and CFC Clause in Contracts

PFIC and CFC. 16.1 Notwithstanding any other provisions of this Agreement or the Articles to the contrary and without prejudice to the rights of BVP pursuant to clause 5 and Article 5.5 of the Articles: (a) the Company shall not, and the Founder shall procure that the Company shall not, without the prior written consent of BVP, issue or allot any Shares to any person if following such issue or allotment the Company, in the reasonable opinion of counsel or accountants appointed by BVP, would be a CFC with respect to the Shares held by BVP; (b) no later than two (2) months following the end of each Company taxable year, the Company shall provide the following information to BVP: (i) the Company’s capitalisation table as of the end of the last day of such taxable year and (ii) a report regarding the Company’s status as a CFC. In addition, the Company shall provide BVP with access to such other Company information as may reasonably be required by BVP to determine the Company’s status as a CFC to determine whether BVP is required to report its pro rata portion of the Company’s Subpart F Income on its United States federal income tax return, or to allow BVP to otherwise comply with applicable United States federal income tax laws; (c) the Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a CFC and regarding whether any portion of the Company’s income is Subpart F Income. In the event that the Company is, in the reasonable opinion of the Company’s tax advisors or of counsel or accountants appointed by BVP, a CFC with respect to the Shares held by BVP, the Company shall and the Founder shall procure that the Company shall use reasonable endeavours to ensure that it minimises, to the extent practicable, any Subpart F Income; (d) the Company shall use its reasonable endeavours to avoid being a PFIC. 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 BVP of such status or risk, as the case may be. In the event that BVP notifies the Company in writing that it has made a QEF Election, the Company shall and the Founder shall procure that the Company shall: (i) as soon as reasonably practicable following the end of each taxable year of the Company (but in no event later than 90 days following the end of each such taxable year) provide to BVP an annual PFIC information statement; and (ii) during business hours, provide access to BVP to the Company’s books, records, documents, information and employees as is reasonably required by BVP in order that it may prepare and file US federal income tax returns in connection with such QEF Election; (e) the Company shall, and the Founder shall procure that the Company shall, take such action as is reasonably necessary including, without limitation, making an election to be treated as a corporation (for the purposes of the Code) or refraining from making an election to be treated as a partnership (for the purposes of the Code) as may be reasonably required by BVP, acting on the advice of its counsel or accountants, to ensure that the Company is, at all times, treated as a corporation for United States federal income tax purposes; and the Company shall make due inquiry with its tax advisors on at least an annual basis regarding whether BVP’s interest in the Company is subject to the reporting requirements of either or both of Sections 6038 and 6038B of the Code (and the Company shall duly inform BVP of the results of such determination), and in the event that the Company’s tax advisors or BVP’s tax advisors determine that BVP’s interest in Company is subject to such reporting requirements, Company agrees, upon a request from BVP, to provide such information to BVP as may be necessary to fulfil BVP’s obligations thereunder. 16.2 In addition to the Preferential Dividend (as defined in the Articles) and without prejudice to the entitlement to receive the Preferential Dividend in its entirety, if any Major Investor is required as a result of the application of the CFC rules or a QEF Election to the Company to include any amount in gross income for United States federal income tax purposes, the Investor Majority shall have the right to require that the Company makes a cash distribution sufficient to cover the tax liabilities incurred by any such Major Investor with respect to such amount (provided that a per-share distribution is paid to all other holders of Preference Shares if required by law in an amount which is the minimum required by law).

PFIC and CFC. 16.1 Notwithstanding any other provisions of this Agreement or the Articles to the contrary and without prejudice to the rights of BVP pursuant to clause 5 and Article 5.5 of the Articles: (a) the The Company shall notwill use, and will cause each of the Founder shall procure that other Group Companies to use, commercially reasonable best efforts to avoid classification as a PFIC, for the Company shall not, without the prior written consent of BVP, issue current year or allot any Shares to any person if following such issue or allotment the Company, in the reasonable opinion of counsel or accountants appointed by BVP, would be a CFC with respect to the Shares held by BVP;subsequent year. (b) no later than two The Company shall promptly provide the Investors with written notice if it (2or any of the other Group Companies) months following becomes a PFIC. Such notice shall include a reasonably detailed analysis of the determination that the Company (or any of the other Group Companies) has become a PFIC. (c) As soon as practicable from the end of each taxable year of the Company, the Company shall determine, in consultation with its tax advisors, whether the Company or any of its Subsidiaries was a PFIC in such taxable year (including whether any exception to PFIC status may apply). If the Company determines that any such entity has become a PFIC in such taxable year, or that there is a likelihood of any such entity being classified as a PFIC for any taxable year, the Company shall promptly notify the Investors of such status or risk, as the case may be, and as soon as practicable from the end of such taxable year, and in no event later than forty-five (45) days from the end of such taxable year, provide the following information to the Investor: (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 pursuant to Section 1295 of the Code or a “Protective Statement” pursuant to Treasury Regulation Section 1.1295-3, as amended (or any successor thereto), (ii) a completed “PFIC Annual Information Statement” pursuant to Treasury Regulation Section 1.1295-1(g), and (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 request, the books and records of the Company and the other Group Companies, and to provide information to the Investors pertinent to the Company’s status or potential status as a PFIC. (d) As soon as practicable but not later than forty-five (45) days from the end of each taxable year of the Company, the Company shall determine with its tax advisors on at least an annual basis regarding the Company’s status as a CFC and whether any portion of the Company’s income is “subpart F income” (as defined in Section 952 of the Code) (“Subpart F Income”). Each Investor shall reasonably cooperate with the Company to provide information about such Investor and such Investor’s Partners in order to enable the Company’s tax advisors to determine the status of such Investor and/or any of such Investor’s Partners as a “United States Shareholder” within the meaning of Section 951(b) of the Code. At the request of any Investor, the Company shall provide the following information to BVPsuch Investor: (i) the Company’s capitalisation capitalization table as of the end of the last day of such taxable year and (ii) a report regarding the Company’s status as a CFC. In addition, at the reasonable request of the Investors, the Company shall provide BVP the Investors with access to such other Company information as may reasonably be required by BVP necessary for the Investors to determine the Company’s status as a CFC and to determine whether BVP Investor or any of Investor’s Partners is required to report its pro rata portion of the Company’s Subpart F Income on its United States federal income tax return, or to allow BVP such Investor or such Investor’s Partners to otherwise comply with applicable United States federal income tax laws; (c) the Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a CFC and regarding whether any portion . For purposes of the Company’s income is Subpart F Income. In the event that the Company is, in the reasonable opinion of the Company’s tax advisors or of counsel or accountants appointed by BVP, a CFC with respect to the Shares held by BVP, the Company shall and the Founder shall procure that the Company shall use reasonable endeavours to ensure that it minimises, to the extent practicable, any Subpart F Income; (d) the Company shall use its reasonable endeavours to avoid being a PFIC. The Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status foregoing 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 BVP of such status or risk, well as the case may be. In the event that BVP notifies the Company representations contained in writing that it has made a QEF Electionthis section, the Company shall and the Founder shall procure that the Company shall: (i) as soon as reasonably practicable following the end of term “Investor’s Partners” shall mean each taxable year of the Company (but in no event later than 90 days following the end Investor’s partners and any direct or indirect equity owners of each such taxable year) provide to BVP an annual PFIC information statement; and partners and (ii) during business hours, provide access to BVP to the “Company’s books, records, documents, information and employees as is reasonably required by BVP in order that it may prepare and file US federal income tax returns in connection with such QEF Election; (e) ” shall mean the Company shall, and the Founder shall procure that the Company shall, take such action as is reasonably necessary including, without limitation, making an election to be treated as a corporation (for the purposes of the Code) or refraining from making an election to be treated as a partnership (for the purposes of the Code) as may be reasonably required by BVP, acting on the advice any of its counsel or accountants, to ensure that the Company is, at all times, treated as a corporation for United States federal income tax purposes; and the Company shall make due inquiry with its tax advisors on at least an annual basis regarding whether BVP’s interest in the Company is subject to the reporting requirements of either or both of Sections 6038 and 6038B of the Code (and the Company shall duly inform BVP of the results of such determination), and in the event that the Company’s tax advisors or BVP’s tax advisors determine that BVP’s interest in Company is subject to such reporting requirements, Company agrees, upon a request from BVP, to provide such information to BVP as may be necessary to fulfil BVP’s obligations thereundersubsidiaries. 16.2 In addition to the Preferential Dividend (as defined in the Articles) and without prejudice to the entitlement to receive the Preferential Dividend in its entirety, if any Major Investor is required as a result of the application of the CFC rules or a QEF Election to the Company to include any amount in gross income for United States federal income tax purposes, the Investor Majority shall have the right to require that the Company makes a cash distribution sufficient to cover the tax liabilities incurred by any such Major Investor with respect to such amount (provided that a per-share distribution is paid to all other holders of Preference Shares if required by law in an amount which is the minimum required by law).