Common use of Tax Treatment as Reorganization Clause in Contracts

Tax Treatment as Reorganization. (a) Each of Parent, the Merger Subsidiaries and the Company intends, and shall use its commercially reasonable efforts to cause, the First Step Merger and the Second Step Merger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Parties hereto adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g). (b) Unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code, each of Parent, the Merger Subsidiaries and the Company shall report the First Step Merger and the Second Step Merger, taken together, as a “reorganization” within the meaning of Section 368(a) of the Code. (c) Each of Parent, the Merger Subsidiaries and the Company agrees to use all commercially reasonable efforts in order for the Company to obtain a written tax opinion from its tax counsel (as specified in Section 7.3(d)), in form and substance reasonably satisfactory to them, dated as of the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinions, for United States federal income tax purposes, the First Step Merger and the Second Step Merger, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code (the “Tax Opinion”). As a condition precedent to the rendering of such Tax Opinions, Parent (and the Merger Subsidiaries) and the Company shall, as of the Closing Date, execute and deliver to Dechert LLP or Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (or such other nationally-recognized law firm as Parent or the Company may select in lieu thereof), officers’ certificates, dated and executed as of the dates of such Tax Opinion (the “Tax Representation Letters”), in substantially the forms attached to this Agreement as Exhibit B and Exhibit C, respectively. In rendering the Tax Opinion, such counsel shall be entitled to rely on customary assumptions and representations reasonably satisfactory to such counsel, including representations set forth in the Tax Representation Letters. (d) If for any reason, including any payments required to be made to any holders of Dissenting Shares, the First Step Merger and the Second Step Merger, taken together, will not satisfy the “continuity of interest” requirement of Treasury Regulations Section 1.368-1(e), necessary to qualify as a “reorganization” within the meaning of Section 368(a) of the Code, then, if requested by the Company, the Maximum Cash Amount shall be reduced only to the extent as is necessary for the First Step Merger and the Second Step Merger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the calculations in Section 2.5 shall be re-calculated taking into account such reduced Maximum Cash Amount; provided, that in no event shall the Maximum Stock Amount be exceeded.

Tax Treatment as Reorganization. (a) If, and only if, the Continuity Percentage is greater than or equal to the Reorganization Threshold: (i) Each of Parent, the Merger Subsidiaries Subsidiary, Merger Subsidiary Two and the Company intends, and shall use its commercially reasonable best efforts to cause, the First Step Merger and the Second Step MergerMergers, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code Code, within the manner described in Revenue Ruling 2001-46, and the Parties parties hereto adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g)) of the regulations promulgated under the Code. Parent shall not make an election under Section 338 of the Code with respect to the Company in connection with the transactions contemplated by this Agreement. (bii) Unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code, each of Parent, the Merger Subsidiaries Subsidiary, Merger Subsidiary Two and the Company shall report the First Step Merger and the Second Step MergerMergers, taken together, as a “reorganization” within the meaning of Section 368(a) of the CodeCode and shall not take any inconsistent position therewith in any Tax Return. (ciii) Each of Parent, the Merger Subsidiaries The Parties shall cooperate and the Company agrees to use all their commercially reasonable efforts in order for (i) the Company to obtain a written tax the opinion from its tax counsel (as specified in Section 7.3(d))of Shearman & Sterling LLP, in form and substance reasonably satisfactory acceptable to themthe Company, dated as of the Closing Date and (ii) Parent to obtain the opinion of Xxxxxx & Xxxxxxx LLP, in form and substance reasonably acceptable to Parent, dated as of the Closing Date, each to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinionsopinion, for United States federal income tax purposes, the First Step Merger and the Second Step MergerMergers, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code (the “Tax Opinion”)Code. As a condition precedent to the rendering of such Tax Opinionsopinions, Parent (and the Merger SubsidiariesSubsidiary and Merger Subsidiary Two) and the Company shall, as of the Closing Date, execute and deliver to Dechert LLP or Pillsbury Xxxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP and Shearman & Sterling LLP tax representation letters (or such other nationally-recognized law firm as Parent or the Company may select in lieu thereof“Tax Representation Letters”), officers’ certificates, dated and executed as of the dates of such Tax Opinion (the “Tax Representation Letters”)opinions, in substantially the forms attached to this Agreement as Exhibit B C and Exhibit CD, respectively. In rendering Parent (and Merger Subsidiary and Merger Subsidiary Two) and the Tax OpinionCompany shall, such counsel shall be entitled as of the date for filing the Registration Statement and the Australian Prospectus, as the case may be, execute and deliver to rely on customary assumptions Xxxxxx & Xxxxxxx LLP and representations reasonably satisfactory to such counsel, including representations set forth in the Shearman & Sterling LLP Tax Representation Letters, dated and executed as of the applicable filing date, in substantially the forms attached to this Agreement as Exhibit C and Exhibit D, respectively. Notwithstanding anything in Section 7.02 or Section 7.03 to the contrary, the obligation to deliver the opinions referred to in this Section 6.11 shall not be waivable after receipt of any Company stockholder approval required by Applicable Law, unless further stockholder approval is obtained with appropriate disclosure. (db) If for any reason, including any payments required to be made to any holders of Dissenting Shares, The following terms shall have the First Step Merger and the Second Step Merger, taken together, will not satisfy the “continuity of interest” requirement of Treasury Regulations Section 1.368-1(e), necessary to qualify as a “reorganization” within the meaning of Section 368(a) of the Code, then, if requested by the Company, the Maximum Cash Amount shall be reduced only to the extent as is necessary for the First Step Merger and the Second Step Merger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the calculations in Section 2.5 shall be re-calculated taking into account such reduced Maximum Cash Amount; provided, that in no event shall the Maximum Stock Amount be exceeded.following meanings:

Tax Treatment as Reorganization. (a) Each of Parent, the Merger Subsidiaries Subsidiary and the Company intends, and shall use its commercially reasonable best efforts to cause, the First Step Merger and the Second Step Merger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Parties hereto adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g). (b) Unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code, each of Parent, the Merger Subsidiaries Subsidiary and the Company shall report the First Step Merger and the Second Step Merger, taken together, as a “reorganization” within the meaning of Section 368(a) of the Code. (c) Each of Parent, the Merger Subsidiaries The Parties shall cooperate and the Company agrees to use all their commercially reasonable efforts in order for the Company to obtain a written tax the opinion from its tax counsel (as specified in Section 7.3(d))of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, in form and substance reasonably satisfactory acceptable to themthe Company and Parent, dated as of the Closing Date to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinionsopinion, for United States federal income tax purposes, the First Step Merger and the Second Step Merger, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code (the “Tax Opinion”)Code. As a condition precedent to the rendering of such Tax Opinionsopinion, Parent (and the Merger SubsidiariesSubsidiary) and the Company shall, as of the Closing Date, execute and deliver to Dechert LLP or Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (or such other nationally-recognized law firm as Parent or the Company may select in lieu thereof), officers’ certificatestax representation letters, dated and executed as of the dates of such Tax Opinion opinions (the “Tax Representation Letters”), in substantially the forms attached to this Agreement as Exhibit B C and Exhibit CD, respectively. In rendering Notwithstanding anything in Section 7.02 or Section 7.03 to the Tax Opinion, such counsel shall be entitled to rely on customary assumptions and representations reasonably satisfactory to such counsel, including representations set forth in the Tax Representation Letters. (d) If for any reason, including any payments required to be made to any holders of Dissenting Sharescontrary, the First Step Merger and obligation to deliver the Second Step Mergeropinion referred to in this Section 6.11 shall not be waivable after receipt of any Company stockholder approval required by Applicable Law, taken together, will not satisfy the “continuity of interest” requirement of Treasury Regulations Section 1.368-1(e), necessary to qualify as a “reorganization” within the meaning of Section 368(a) of the Code, then, if requested by the Company, the Maximum Cash Amount shall be reduced only to the extent as unless further stockholder approval is necessary for the First Step Merger and the Second Step Merger, taken together, to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the calculations in Section 2.5 shall be re-calculated taking into account such reduced Maximum Cash Amount; provided, that in no event shall the Maximum Stock Amount be exceededobtained with appropriate disclosure.