Preservation of Active Trade or Business. From the Distribution Date until the first Business Day after the two-year anniversary of the Distribution Date, SpinCo shall (i) maintain its status as a company engaged in its Active Trade or Business for purposes of Section 355(b)(2) of the Code; (ii) not engage in any transaction that would result in it ceasing to be a company engaged in its Active Trade or Business for purposes of Section 355(b)(2) of the Code; (iii) cause each SpinCo Affiliate whose activities are relied upon in the Tax Opinions for purposes of qualifying an Internal Distribution as having a Tax-Free Status to maintain such SpinCo Affiliate’s status as a company engaged in such Active Trade or Business for purposes of Section 355(b)(2) of the Code; (iv) not permit any SpinCo Affiliate described in clause (iii) to engage in any transaction that would result in the SpinCo Affiliate ceasing to be a company engaged in the relevant Active Trade or Business for purposes of Section 355(b)(2) of the Code; (v) not dispose of or permit a SpinCo Affiliate to dispose of, directly or indirectly, any interest in a SpinCo Affiliate described in clause (iii), or permit any such SpinCo Affiliate to make or revoke any Check-the-Box election, and (vi) except as provided in Sections 6.1(c) or 6.1(d), not sell, transfer, or otherwise dispose of any stock or assets constituting more than 25% of the gross assets of the SpinCo Group (or, if less, 35% of the net assets of the SpinCo Group), measured as of the Distribution Date, to a Person that is not part of SpinCo’s separate affiliated group as defined in Section 355(b)(3) of the Code.
Preservation of Active Trade or Business. From the Distribution Date until the first Business Day after the two-year anniversary of the Distribution Date, SpinCo shall (i) maintain its status as a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code; (ii) not engage in any transaction that would result in it ceasing to be a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code; (iii) cause each SpinCo Affiliate, whose activities are relied upon in the Tax Opinion for purposes of qualifying a transaction as tax-free pursuant to Section 355 of the Code or other Tax Law, to maintain its status as a company engaged in such Active Trade or Business for purposes of Section 355(b)(2) of the Code and any such other applicable Tax Law; (iv) not engage in any transaction or permit a SpinCo Affiliate to engage in any transaction that would result in them ceasing to be engaged in the relevant Active Trade or Business for purposes of Section 355(b)(2) of the Code or such other applicable Tax Law, taking into account Section 355(b)(3) of the Code for purposes of clauses (i) through (iv); (v) not dispose of or permit a SpinCo Affiliate to dispose of, directly or indirectly, any interest in a SpinCo Affiliate described in clause (iii), or permit any such SpinCo Affiliate to make or revoke any election under Treasury Regulation Section 301.7701-3, and (vi) except as provided in Section 6.1(c) or 6.1(d), not sell, transfer or dispose of any stock or assets constituting more than 25% of the gross assets of the SpinCo Group (measured as of the Distribution Date) to a Person that is not part of SpinCo’s separate affiliated group as defined in Section 355(b)(3) of the Code. The foregoing shall not prevent SpinCo from using its cash or cash equivalents to repay debt, acquire an unrelated company or make distributions to its shareholders.
