BE LIABLE WHICH HAS NOT BEEN FULLY PAID OR FINALLY
SETTLED.
(D)
NEITHER SPINCO NOR ANY SPINCO SUBSIDIARY (I) IS A PARTY TO OR
BOUND BY OR HAS ANY OBLIGATION OR LIABILITY UNDER ANY WRITTEN TAX SEPARATION,
SHARING OR SIMILAR AGREEMENT OR ARRANGEMENT OTHER THAN THE TAX SHARING
AGREEMENT, (II) IS OR HAS BEEN A MEMBER OF ANY CONSOLIDATED, COMBINED OR UNITARY
GROUP FOR PURPOSES OF FILING TAX RETURNS OR PAYING TAXES, (III) HAS ENTERED INTO
A CLOSING AGREEMENT PURSUANT TO SECTION 7121 OF THE CODE, OR ANY PREDECESSOR
PROVISION OR ANY SIMILAR PROVISION OF STATE OR LOCAL LAW, (IV) IS REQUIRED TO
INCLUDE IN INCOME ANY AMOUNT IN RESPECT OF AN ADJUSTMENT PURSUANT TO SECTION 481
OF THE CODE BY REASON OF A CHANGE IN ACCOUNTING METHOD, OR (V) HAS FILED ANY
CONSENTS UNDER SECTION 341(F) OF THE CODE.
(E)
NO ASSET OF SPINCO OR ANY SPINCO SUBSIDIARY AND NO ASSET OF THE
SPINCO BUSINESS IS SUBJECT TO ANY TAX LIEN (OTHER THAN LIENS FOR TAXES THAT ARE
NOT YET DUE OR THAT ARE BEING CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS
AND WHICH HAVE BEEN PROPERLY RESERVED FOR IN THE BOOKS AND RECORDS OF SPINCO).
(F)
TO FOREST'S AND SPINCO'S KNOWLEDGE, NEITHER FOREST NOR SPINCO,
NOR ANY OF THEIR RESPECTIVE AFFILIATES, HAS TAKEN OR AGREED TO TAKE ANY ACTION
THAT WOULD PREVENT THE MERGER FROM CONSTITUTING A TRANSACTION QUALIFYING UNDER
SECTION 368(A) OF THE CODE.
NEITHER FOREST NOR SPINCO IS AWARE OF ANY
AGREEMENT, PLAN OR OTHER CIRCUMSTANCE THAT WOULD PREVENT THE MERGER FROM
QUALIFYING UNDER SECTION 368(A) OF THE CODE.
(G)
NONE OF THE ASSETS OF FOREST, ANY SUBSIDIARY OF FOREST, SPINCO,
ANY SPINCO SUBSIDIARY OR THE SPINCO BUSINESS ARE TAX-EXEMPT USE PROPERTY WITHIN
THE MEANING OF SECTION 168(H) OF THE CODE.
(H)
NEITHER FOREST, ANY SUBSIDIARY OF FOREST, SPINCO NOR ANY SPINCO
SUBSIDIARY HAS CONSUMMATED, HAS PARTICIPATED IN OR IS CURRENTLY PARTICIPATING IN
ANY TRANSACTION WHICH WAS OR IS A LISTED TRANSACTION AS DEFINED IN TREASURY
REGULATION SECTION 1.6011-4(B)(2).
Section 4.12
Benefit Plans.
(A)
SECTION 4.12(A) OF THE SPINCO DISCLOSURE SCHEDULE LISTS EACH
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF ERISA), AND ALL OTHER
EMPLOYEE BENEFIT, BONUS, INCENTIVE, DEFERRED COMPENSATION, STOCK OPTION (OR
OTHER EQUITY-BASED), SEVERANCE, CHANGE IN CONTROL,
25
WELFARE (INCLUDING POST-RETIREMENT MEDICAL AND LIFE INSURANCE), VACATION,
RETENTION AND FRINGE BENEFIT PLANS, WHETHER OR NOT SUBJECT TO ERISA AND WHETHER
WRITTEN OR ORAL, SPONSORED, MAINTAINED OR CONTRIBUTED TO OR REQUIRED TO BE
CONTRIBUTED TO BY FOREST (TO THE EXTENT AFFECTING SPINCO OR THE SPINCO
BUSINESS), SPINCO OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, OR TO WHICH FOREST
(TO THE EXTENT AFFECTING SPINCO OR THE SPINCO BUSINESS), SPINCO OR ANY OF THEIR
RESPECTIVE SUBSIDIARIES IS A PARTY, FOR THE BENEFIT OF ANY PERSON WHO IS
CURRENTLY, HAS BEEN OR, ON OR PRIOR TO THE EFFECTIVE TIME, IS EXPECTED TO BECOME
AN EMPLOYEE OF SPINCO OR ANY OF ITS SUBSIDIARIES (A "SPINCO EMPLOYEE") (THE
"SPINCO BENEFIT PLANS").
EXCEPT AS PROVIDED IN SECTION 2.9 OR IN