SET FORTH IN SUCH
PROVISIONS OR IN SECTION 4(C), SO THAT SPINCO AND EACH MEMBER OF THE SPINCO
GROUP SHALL BE RESPONSIBLE FOR ANY AND ALL TAX-RELATED LOSSES EVEN IF SUCH
TAX-RELATED LOSSES ARE ATTRIBUTABLE TO OR RESULT FROM ANY ACT OR FAILURE TO ACT
PURSUANT TO AN EXCEPTION OR PROVISO DESCRIBED IN SECTION 4(B)(I) THROUGH
4(B)(VI) OR IN SECTION 4(C)), EXPRESSLY INCLUDING, FOR THIS PURPOSE, ANY
PERMITTED TRANSACTION AND ANY ACT OR FAILURE TO ACT THAT BREACHES
SECTION 4(B)(I) OR 4(B)(II), REGARDLESS OF WHETHER SUCH ACT OR FAILURE TO ACT IS
PERMITTED BY SECTION 4(B)(III) THROUGH 4(B)(VI);
(II)
ANY ACQUISITION OF EQUITY SECURITIES OF
SPINCO OR ANY MEMBER OF THE SPINCO GROUP BY ANY PERSON OR PERSONS (INCLUDING,
WITHOUT LIMITATION, AS A RESULT OF AN ISSUANCE OF SPINCO EQUITY SECURITIES OR A
MERGER OF ANOTHER ENTITY WITH AND INTO SPINCO OR ANY MEMBER OF THE SPINCO GROUP)
OR ANY ACQUISITION OF ASSETS OF SPINCO OR ANY MEMBER OF THE SPINCO GROUP
(INCLUDING, WITHOUT LIMITATION, AS A RESULT OF A MERGER) BY ANY PERSON OR
PERSONS; AND
17
(III)
TAX COUNSEL WITHDRAWING ALL OR ANY PORTION
OF THE TAX OPINION OR ANY TAX AUTHORITY WITHDRAWING ALL OR ANY PORTION OF A
PRIVATE LETTER RULING ISSUED TO PARENT IN CONNECTION WITH THE SPIN-OFF-RELATED
TRANSACTIONS BECAUSE OF A BREACH BY SPINCO OR ANY MEMBER OF THE SPINCO GROUP OF
A REPRESENTATION MADE IN THIS AGREEMENT (OR MADE IN CONNECTION WITH THE TAX
OPINION OR ANY PRIVATE LETTER RULING).
(F)
COOPERATION.
(I)
WITHOUT LIMITING THE PROHIBITION SET
FORTH IN SECTION 4(D)(III), UNTIL THE FIRST DAY AFTER THE RESTRICTION PERIOD,
SPINCO SHALL FURNISH PARENT WITH A COPY OF ANY RULING REQUEST THAT ANY MEMBER OF
THE SPINCO GROUP MAY FILE WITH THE IRS OR ANY OTHER TAX AUTHORITY AND ANY
OPINION RECEIVED THAT IN ANY RESPECT RELATES TO, OR OTHERWISE REASONABLY COULD
BE EXPECTED TO HAVE ANY EFFECT ON, THE TAX-FREE STATUS OF ANY OF THE
SPIN-OFF-RELATED TRANSACTIONS.
(II)
PARENT SHALL REASONABLY COOPERATE WITH
SPINCO IN CONNECTION WITH ANY REQUEST BY SPINCO FOR AN UNQUALIFIED TAX OPINION
PURSUANT TO SECTION 4(C).
(III)
UNTIL THE FIRST DAY AFTER THE RESTRICTION
PERIOD, SPINCO WILL PROVIDE ADEQUATE ADVANCE NOTICE TO PARENT IN ACCORDANCE WITH
THE TERMS OF SECTION 4(F)(IV) OF ANY ACTION DESCRIBED IN SECTIONS
4(B)(I) THROUGH 4(B)(VI) WITHIN A PERIOD OF TIME SUFFICIENT TO ENABLE PARENT TO
SEEK INJUNCTIVE RELIEF PURSUANT TO SECTION 4(G) IN A COURT OF COMPETENT
JURISDICTION.
(IV)
EACH NOTICE REQUIRED BY
SECTION 4(F)(III) SHALL SET FORTH THE TERMS AND CONDITIONS OF ANY SUCH PROPOSED
TRANSACTION, INCLUDING, WITHOUT LIMITATION, (A) THE NATURE OF ANY RELATED ACTION
PROPOSED TO BE TAKEN BY THE BOARD OF DIRECTORS OF SPINCO, (B) THE APPROXIMATE
NUMBER OF EQUITY SECURITIES (AND THEIR VOTING AND ECONOMIC RIGHTS) OF SPINCO OR
ANY MEMBER OF THE SPINCO GROUP (IF ANY) PROPOSED TO BE SOLD OR OTHERWISE ISSUED,
(C) THE APPROXIMATE VALUE OF SPINCO'S ASSETS (OR ASSETS OF ANY MEMBER OF THE
SPINCO GROUP) PROPOSED TO BE TRANSFERRED, AND (D) THE PROPOSED