Section 368 Opinion Clause Samples
A Section 368 Opinion clause requires that legal counsel provide an opinion confirming that a proposed transaction qualifies as a tax-free reorganization under Section 368 of the Internal Revenue Code. In practice, this means that before closing, the parties must obtain a written legal opinion stating that the transaction meets all necessary requirements for favorable tax treatment, such as continuity of interest and business enterprise. The core function of this clause is to ensure that the parties receive the expected tax benefits and to mitigate the risk of unexpected tax liabilities arising from the transaction.
Section 368 Opinion. The Company shall have received a written opinion of G▇▇▇▇▇▇▇▇ Traurig, LLP (or other counsel to the Company reasonably satisfactory to Parent), dated as of the Closing Date and in form and substance reasonably satisfactory to the Company, to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering the opinion described in this Section 7.3(e), counsel shall be entitled to require and rely upon customary representations contained in certificates of officers of the Company and Parent, reasonably satisfactory in form and substance to the Company and Parent.
Section 368 Opinion. The Company shall have received a written opinion of Company Tax Counsel, or other nationally recognized tax counsel to the Company, dated as of the Closing Date and substantially in the form set forth in Section 7.3(f) of the Company Disclosure Schedule, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code, which opinion will be subject to customary exceptions, assumptions and qualifications. In rendering such opinion, such counsel may rely upon the tax representation letters described in Section 6.17.
Section 368 Opinion. The Company shall have received a written opinion of its counsel, Weil, Gotshal & M▇▇▇▇▇ LLP, dated as of the Closing Date and in form and substance as set forth in Exhibit F, and with such changes as are mutually agreeable to the Company and Parent, to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel may rely upon the Company Tax Representation Letter and Parent Tax Representation Letter. The condition set forth in this Section 7.3(f) shall not be waivable after receipt of the Company Stockholder Approval, unless further stockholder approval is obtained with appropriate disclosure.
Section 368 Opinion. (i) Sirius shall have received the written opinion of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. (or other counsel to Sirius reasonably satisfactory to Polaris and Constellation, which the parties agree shall include W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP and H▇▇▇▇ Lovells US LLP for purposes of this Section 7.03(h)), dated as of the date which includes the Sirius-Polaris Merger Effective Time in form and substance reasonably satisfactory to Sirius, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, (x) the New Holdco Merger together with the LLC Conversion will qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, and (y) each Public Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, and (ii) Polaris shall have received the written opinion of Skadden, Arps, Slate, Meagher, & F▇▇▇ LLP (or other counsel to Polaris reasonably satisfactory to Sirius and Constellation, which the parties agree shall include W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP, V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P. and H▇▇▇▇ Lovells US LLP for purposes of this Section 7.03(h)), dated as of the date which includes the Sirius-Polaris Merger Effective Time and in form and substance reasonably satisfactory to Polaris, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Redomestication Merger will qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code. In rendering such opinions, counsel shall be entitled to require and rely upon customary representations contained in certificates of officers of Sirius, Polaris and Constellation, reasonably satisfactory in form and substance to Sirius, Polaris and Constellation.
Section 368 Opinion. Parent shall have received the written opinion of its special counsel, D▇▇▇▇ ▇▇▇▇▇▇ LLP, dated as of the Closing Date and in form and substance as set forth in Exhibit D, and with such changes as are mutually agreeable to Parent and the Company, to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, D▇▇▇▇ ▇▇▇▇▇▇ LLP may rely upon the Company Tax Representation Letter and Parent Tax Representation Letter. The condition set forth in this Section 7.2(f) shall not be waivable after receipt of the Parent Stockholder Approval, unless further stockholder approval is obtained with appropriate disclosure.
Section 368 Opinion. REIT II shall have received a written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., or other counsel to REIT II reasonably satisfactory to REIT I, dated as of the Closing Date and in form and substance reasonably satisfactory to REIT II, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion will be subject to customary exceptions, assumptions and qualifications. In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may rely upon the tax representation letters described in Section 7.12.
Section 368 Opinion. CMFT shall have received a written opinion of Transaction Opinion Counsel, or other nationally recognized tax counsel to CMFT, dated as of the Closing Date, in form and substance reasonably acceptable to CMFT, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion will be subject to customary exceptions, assumptions and qualifications. In rendering such opinion, such counsel may rely upon the tax representation letters described in Section 7.10.
Section 368 Opinion. The parties shall have received the written opinion of Eversheds S▇▇▇▇▇▇▇▇▇ (US) LLP (or such other counsel as may be reasonably satisfactory to the parties), dated as of the Closing Date and in form and substance reasonably satisfactory to the parties, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code.
Section 368 Opinion. Nova I shall have received the written opinion of ▇▇▇▇▇▇ & Bird LLP (or other counsel to Nova I reasonably satisfactory to Nova II and Constellation OP, which the parties agree shall include the firms listed on Section 7.02(k) of the Nova I Disclosure Letter), dated as of the date that includes the Nova I Merger Effective Time and in form and substance reasonably satisfactory to Nova I, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Nova I Merger will qualify as a reorganization within the meaning of Section 368(a)(1) of the Code. In rendering such opinion, counsel shall be entitled to require and rely upon customary assumptions and customary representations contained in certificates of officers of Nova I and Newco, reasonably satisfactory in form and substance to Nova I and Newco.
Section 368 Opinion. CCIT III shall have received a written opinion of Transaction Opinion Counsel, or other tax counsel to CCIT III, dated as of the Closing Date, in form and substance reasonably acceptable to CCIT III, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion will be subject to customary exceptions, assumptions and qualifications. In rendering such opinion, such counsel may rely upon the tax representation letters described in Section 7.10.