Section 368 Clause Samples

Section 368. Neither Landcadia nor Merger Sub has taken any action and neither has knowledge of any fact, agreement, plan or other circumstance that is reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. Without limiting the foregoing: (a) Merger Sub has no plan or intention to issue additional shares of stock, warrants, options, convertible securities, or any other type of right pursuant to which any Person could acquire stock in Merger Sub, that, if exercised or converted, would result in Landcadia losing control of Merger Sub within the meaning of Section 368(c) of the Code; (b) Landcadia has no plan or intention to liquidate Merger Sub, to merge Merger Sub with another corporation unless Merger Sub is the surviving corporation in such merger, or to sell or otherwise dispose of any of the stock of Merger Sub, or to cause Merger Sub to sell or otherwise dispose of any of the assets of Waitr acquired in the Merger, except for dispositions made in the ordinary course of business or transfers described in Section 368(a)(2)(c) of the Code; (c) no shares of Landcadia Common Stock have been or will be transferred to Merger Sub in connection with the Merger; (d) no stock of Merger Sub will be issued in the Merger; (e) neither Landcadia nor any person related to Landcadia (with the meaning of Treasury Regulation Section 1.368-1(e)(3)) has any plan or intention to reacquire, either directly or indirectly through an Affiliate, any of the Landcadia Common Stock issued in the Merger, and Landcadia has no plan or intention to make any distribution (other than regular dividends) with respect to such stock; (f) following the Merger, Landcadia and Merger Sub intend to continue Waitr’s historic business; and (g) neither Landcadia nor Merger Sub are investment companies as defined in Section 368(a)(2)(F) of the Code.

Section 368. The continuity of business enterprise requirement ("COBE") is set forth in Internal Revenue Service regulations. These regulations require BancGroup or a member of BancGroup's qualified group (as defined in Treas. Reg. Section 1. 368-1(d)(4)) either to (i) continue a significant line of Acquired Corporation's historic business or (ii) use a significant portion of Acquired Corporation's historic business assets in a business. Generally, COBE should be satisfied if BancGroup continues a business of Acquired Corporation worth at least one-third of Acquired Corporation's total value or uses business assets worth at least one-third of Acquired Corporation's total value in a business.

Section 368. The representation letter in the form attached as Schedule 9.6.7 to the Parent Disclosure Schedule is, and at the Closing, will be true, accurate and complete in all material respects. Acquisition Corp. is newly formed solely for the purpose of entering into the transactions contemplated by the Merger Agreement.

Section 368. Neither the Company nor any of its Subsidiaries has been, in the past five (5) years, a party to a transaction reported or intended to qualify as a reorganization under Section 368 of the Code.

Section 368. Each of Parent, Merger Sub, and the Company intend that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. Each of Parent, Merger Sub, and the Company will cooperate in order to obtain the tax opinion required to be filed with the SEC in connection with the filing of the Registration Statement, including by executing customary letters of representation to counsel. This Agreement is intended to constitute, and the parties hereto hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g) and 1.368-3(a).

Section 368. The acquisition of LVRS stock by Travelscape, and all of its steps, are intended to comply with Section 368(a)(1)(B) of the Code.

Section 368. Each of Parent, Merger Sub, and the Company intend that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code (the “Intended Tax Treatment”). This Agreement is intended to constitute, and the parties hereto hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g) and 1.368-3(a). None of Parent, Merger Sub, or the Company or any Affiliate of the foregoing knows of any fact or circumstance (without conducting independent inquiry or diligence of the other relevant party), or has taken, will take any action, or knowingly fail to take any action, whether before or after the Merger, if such fact, circumstance, action or omission would be reasonably expected to cause the Merger to fail to qualify for the Intended Tax Treatment. The Merger will be reported by the parties hereto for all Tax purposes in accordance with the Intended Tax Treatment, including the filing of the statement required by Treasury Regulations Section 1.368-3, unless otherwise required by law as a result of a “determination” within the meaning of Section 1313(a) of the Code.