WhiteWave Restrictions. WhiteWave agrees that it will not (1) issue any stock of WhiteWave (or any instrument that is convertible, exercisable or exchangeable into any such stock) if such issuance, would, or would reasonably be expected to, cause Xxxx Foods to own stock of WhiteWave that on a fully diluted basis, does not constitute “control” (within the meaning of Section 368(c) of the Code) of WhiteWave, and (2) as long as Xxxx Foods owns stock of WhiteWave constituting control (within the meaning of Section 368(c) of the Code), knowingly take or fail to take, or permit any WhiteWave Affiliate to knowingly take or fail to take, any action that could reasonably be expected to preclude Xxxx Foods’s ability to effectuate the Distribution or the Equity for Debt Exchange (to the extent such exchange is intended to meet the requirements of Section 361(c)(3)) as a tax-free transaction under Sections 355 and 361(c) of the Code. In the event of the Distribution, WhiteWave agrees that (1) it will take, and cause each WhiteWave Affiliate to take, any action reasonably requested by Xxxx Foods in order to enable Xxxx Foods to effectuate the Distribution or the Equity for Debt Exchange (to the extent such exchange is intended to meet the requirements of Section 361(c)(3)) as a tax-free transaction under Sections 355 and 361(c) of the Code and (2) it will not take or fail to take, or permit any WhiteWave Affiliate to take or fail to take, any action where such action or failure to act would be inconsistent with any written representations of an officer of WhiteWave pursuant to Section 4.2(e) of this Agreement with respect to any material, information, covenant or representation that relates to facts or matters related to WhiteWave, any WhiteWave Affiliate, or the WhiteWave Business or within the control of WhiteWave or any WhiteWave Affiliate in a Representation Letter, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling other than as permitted by Section 4.2(c) of this Agreement. For this purpose an action is considered inconsistent with a representation if the representation states that there is no plan or intention to take such action. In the event of the Distribution, WhiteWave agrees that it will not take (and it will cause the WhiteWave Affiliates to refrain from taking) any position on a Tax Return that is inconsistent with the treatment of the Distribution or the Equity for Debt Exchange (to the extent such exchange is intended to meet the requirements of Section 361(c)(3)) as a tax-free transaction under Sections 355 and 361(c) of the Code.
Appears in 6 contracts
Samples: Tax Matters Agreement (Dean Foods Co), Tax Matters Agreement (WHITEWAVE FOODS Co), Tax Matters Agreement (Dean Foods Co)
