Common use of Certain Exceptions Clause in Contracts

Certain Exceptions. Notwithstanding the restrictions imposed by Section 6.02(b), Section 6.02(c) and Section 6.02(e), RMT Parent or SpinCo may proceed with any of the actions or transactions described therein, if (i) GPC shall have given its prior written consent to the action or transaction (such consent not to be unreasonably withheld, conditioned or delayed) (ii) GPC shall have received a ruling in accordance with Section 6.03(a) in form and substance reasonably satisfactory to GPC to the effect that such action or transaction will not affect the Intended Tax Treatment of any applicable transaction, or (iii) (in the event that GPC chooses not to pursue such ruling or if such action or transaction is covered by an area in which the Internal Revenue Service will not issue letter rulings), RMT Parent or SpinCo shall have provided to GPC an Unqualified Tax Opinion in form and substance reasonably satisfactory to GPC prior to effecting such action or transaction (it being understood that GPC shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion is reasonably satisfactory to GPC within ten (10) days of receipt of such Unqualified Tax Opinion by GPC); provided that RMT Parent agrees in writing to bear any reasonable expenses associated with obtaining such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is satisfactory, GPC may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits. For the avoidance of doubt, notwithstanding the covenants set forth in this Section 6.02, SpinCo shall be permitted to enter into the Merger.

Certain Exceptions. Notwithstanding the restrictions imposed by Section 6.02(b), Section 6.02(c) and Section 6.02(e)during the Restriction Period, RMT Parent or SpinCo Spinco may proceed with any of the actions or transactions described therein, if (i) GPC shall have given its prior written consent to the action or transaction (such consent not to be unreasonably withheld, conditioned or delayed) (ii) GPC IP shall have received a supplemental ruling in accordance with Section 6.03(a) in form and substance reasonably satisfactory to GPC IP to the effect that such action or transaction will not affect the Intended Tax Treatment Tax-Free Status of any applicable transaction, or (iiiii) (in the event that GPC IP chooses not to pursue such supplemental ruling or if such action or transaction is covered by an area in which the Internal Revenue Service will not issue letter rulings), RMT Parent or SpinCo ,) Spinco shall have provided to GPC IP an Unqualified Tax Opinion in form and substance reasonably satisfactory to GPC IP at least thirty (30) days prior to effecting such action or transaction (it being understood that GPC and IP shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion is reasonably satisfactory to GPC IP within ten (10) days of receipt of such Unqualified Tax Opinion by GPC); provided that RMT Parent agrees IP, or (iii) IP shall have waived in writing the requirement to bear any reasonable expenses associated with obtaining obtain such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is satisfactory, GPC IP may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits. For the avoidance of doubt, notwithstanding the covenants restrictions set forth in this Section 6.02, SpinCo Spinco shall be permitted to (x) enter into the Parent Company Merger, (y) cause its Subsidiaries to enter into the Operating Company Merger and (z) Spinco may make issuances that satisfy Safe Harbor VII or Safe Harbor IX of Treasury Regulation Section 1.355-7(d) and may redeem any such stock issuance pursuant to this clause (z), so long as any such issuance or redemption is not inconsistent with any formal or informal written guidance provided by the IRS in connection with any IRS Ruling Request.

Certain Exceptions. Notwithstanding the restrictions imposed by Section 6.02(b), Section 6.02(c) and Section 6.02(e)during the Restriction Period, RMT Parent or SpinCo Spinco may proceed with any of the actions or transactions described therein, if (i) GPC shall have given its prior written consent to the action or transaction (such consent not to be unreasonably withheld, conditioned or delayed) (ii) GPC Harbor shall have received a ruling in accordance with Section 6.03(a) in form and substance reasonably satisfactory to GPC Harbor to the effect that such action or transaction will not affect the Intended Tax Treatment Tax-Free Status of any applicable transactionCovered Transaction, or (iiiii) (in the event that GPC Harbor chooses not to pursue such ruling or if such action or transaction is covered by an area in which the Internal Revenue Service will not issue letter rulings), RMT Parent or SpinCo Spinco shall have provided to GPC Harbor an Unqualified Tax Opinion in form and substance reasonably satisfactory to GPC Harbor at least 45 days prior to effecting such action or transaction (it being understood that GPC and Harbor shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion is reasonably satisfactory to GPC Harbor within ten (10) 15 days of receipt of such Unqualified Tax Opinion by GPC); provided that RMT Parent agrees Harbor, or (iii) Harbor shall have waived in writing the requirement to bear any reasonable expenses associated with obtaining obtain such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is satisfactory, GPC Harbor may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits. For the avoidance of doubt, notwithstanding the covenants restrictions set forth in this Section 6.02, SpinCo Spinco shall be permitted to (x) enter into the Merger, and (y) Spinco may make issuances that satisfy Safe Harbor VIII or Safe Harbor IX of Treasury Regulation Section 1.355-7(d), so long as any such issuance is not inconsistent with any formal or informal written guidance provided by the IRS in connection with any IRS Ruling Request or any assumptions, representations and warranties, covenants or certificates relied upon in the Opinion delivered to Harbor.

Certain Exceptions. Notwithstanding the restrictions imposed by Section 6.02(a)(i)(A), 6.02(a)(ii)(A) or Section 6.02(b), Section 6.02(c) and Section 6.02(e)during the Restricted Period, RMT Parent or SpinCo may proceed with any of the actions or transactions described therein, if (i) GPC shall have given its prior written consent to the action or transaction (such consent not to be unreasonably withheld, conditioned or delayed) (ii) GPC Post shall have received a ruling in accordance with Section 6.03(a) in form and substance reasonably satisfactory to GPC Post to the effect that such action or transaction will not affect the Intended Tax Treatment Tax-Free Status of any applicable transactionCovered Transaction, or (iiiii) (in the event that GPC chooses not to pursue such ruling or if such action or transaction is covered by an area in which the Internal Revenue Service will not issue letter rulings), RMT Parent or SpinCo shall have provided to GPC Post an Unqualified Tax Opinion or a ruling in form and substance reasonably satisfactory to GPC Post prior to effecting such action or transaction (it being understood that GPC and Post shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion or ruling is reasonably satisfactory to GPC Post within ten fifteen (1015) days of receipt of such Unqualified Tax Opinion or ruling by GPC); provided that RMT Parent agrees Post or (iii) Post shall have waived in writing the requirement to bear any reasonable expenses associated with obtaining obtain such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is reasonably satisfactory, GPC Post may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits; taking due account of the intention of the Parties to replace the “50-percent or greater interest” as defined in Section 355(e)(2)(A)(ii) of the Code with the forty percent (40%) threshold in the definition of Disqualified Ownership Shift contained herein. For the avoidance of doubt, notwithstanding the covenants restrictions set forth in this Section 6.02, SpinCo shall be permitted to enter into (A) consummate the MergerMerger and (B) maintain the composition of its board of directors in place immediately following the Distribution, subject to re-election in the ordinary course.

Certain Exceptions. Notwithstanding the restrictions imposed by Section 6.02(b), Section 6.02(c) and Section 6.02(e)during the Restriction Period, RMT Parent or SpinCo Spinco may proceed with any of the actions or transactions described therein, if (i) GPC shall have given its prior written consent to the action or transaction (such consent not to be unreasonably withheld, conditioned or delayed) (ii) GPC Harbor shall have received a ruling in accordance with Section 6.03(a) in form and substance reasonably satisfactory to GPC Harbor to the effect that such action or transaction will not affect the Intended Tax Treatment Tax-Free Status of any applicable transactionCovered Transaction, or (iiiii) (in the event that GPC Harbor chooses not to pursue such ruling or if such action or transaction is covered by an area in which the Internal Revenue Service will not issue letter rulings), RMT Parent or SpinCo Spinco shall have provided to GPC Harbor an Unqualified Tax Opinion in form and substance reasonably satisfactory to GPC Harbor at least [45] days prior to effecting such action or transaction (it being understood that GPC and Harbor shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion is reasonably satisfactory to GPC Harbor within ten (10) [15] days of receipt of such Unqualified Tax Opinion by GPC); provided that RMT Parent agrees Harbor, or (iii) Harbor shall have waived in writing the requirement to bear any reasonable expenses associated with obtaining obtain such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is satisfactory, GPC Harbor may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits. For the avoidance of doubt, notwithstanding the covenants restrictions set forth in this Section 6.02, SpinCo Spinco shall be permitted to (x) enter into the Merger, and (y) Spinco may make issuances that satisfy Safe Harbor VIII or Safe Harbor IX of Treasury Regulation Section 1.355-7(d), so long as any such issuance is not inconsistent with any formal or informal written guidance provided by the IRS in connection with any IRS Ruling Request or any assumptions, representations and warranties, covenants or certificates relied upon in the Opinion delivered to Harbor.

Certain Exceptions. Notwithstanding For purposes of this Agreement and subject to the restrictions imposed by following sentence, neither Genentech, Inc. (“Genentech”) nor its Affiliates (which term shall, for purposes of this Section 6.02(b)35 only, Section 6.02(chave the meaning given it below) and Section 6.02(e), RMT Parent or SpinCo may proceed with any shall be deemed to be a Beneficial Owner of the actions or transactions described therein, if Common Stock which are (i) GPC shall have given its prior written consent to issuable (but unissued) upon conversion of the action Company’s Series G Preferred Stock or transaction Series H Preferred Stock (such consent not to be unreasonably withheldcollectively, conditioned the “Genentech Preferred Stock”) or delayed) (ii) GPC issued upon conversion of the Preferred Stock (the Common Stock referred to in phrase (i) being referred to as the “Exempt Unissued Shares” and the Common Stock referred to in phrase (ii) being referred to as the “Exempt Issued Shares” and such shares being referred to collectively as the “Exempt Shares”). Genentech and its Affiliates shall have received a ruling in accordance with Section 6.03(anot be deemed to be the Beneficial Owners of the Exempt Issued Shares only if, and for so long as, the total number of Common Stock (excluding Exempt Unissued Shares and Exempt Shares issued upon conversion of the Preferred Stock at the option of the Company) in form of which Genentech, its Affiliates and substance reasonably satisfactory to GPC any “group” (within the meaning of Rule 13d-5 promulgated pursuant to the effect Exchange Act) of which Genentech or any of its Affiliates is a member would be deemed to be the Beneficial Owner does not exceed forty percent (40%) of the Company’s issued and outstanding Common Stock, provided that such action or transaction will not affect the Intended Tax Treatment of any applicable transaction, or (iii) (increase in the event percentage of Common Stock Beneficially Owned by Genentech or an Affiliate or a group of which Genentech or any of its Affiliates is a member solely as the result of a reduction in the Company’s outstanding Common Stock shall be disregarded for purposes of determining such forty percent (40%) Beneficial Ownership. Common Stock which would be Exempt Issued Shares but for the preceding sentence shall be treated as Beneficially Owned for purposes of this Agreement for so long as they are not eligible for the exemption provided by the preceding sentence. For purposes of this Section 35 only, “Affiliate” shall mean an affiliate (as such term is defined in Rule 405 promulgated under the Act) of Genentech, provided, however, that GPC chooses an affiliate of Genentech which is not controlled (within the meaning of Rule 405) by Genentech shall not be deemed to pursue be an Affiliate unless such ruling or if such action or transaction is covered by an area in which affiliate files statements regarding the Internal Revenue Service will not issue letter rulings)securities of the Company pursuant to Regulation 13D-G under the Exchange Act and provided, RMT Parent or SpinCo shall have provided to GPC an Unqualified Tax Opinion in form and substance reasonably satisfactory to GPC prior to effecting such action or transaction (it being understood that GPC shall use its reasonable best efforts to determine whether such Unqualified Tax Opinion is reasonably satisfactory to GPC within ten (10) days of receipt of such Unqualified Tax Opinion by GPC); provided that RMT Parent agrees in writing to bear any reasonable expenses associated with obtaining such a ruling or opinion, and, provided further, that the RMT Parent Group Entities shall not be relieved of any liability under Section 3.02 by reason of seeking or having obtained such a ruling or opinion. In determining whether a ruling or opinion is satisfactory, GPC may consider, among other factors, the appropriateness of any underlying assumptions or representations used as a basis for the ruling or opinion and the views on the substantive merits. For the avoidance of doubt, notwithstanding the covenants set forth in this Section 6.02, SpinCo neither Genentech nor its Affiliate(s) shall be permitted deemed to enter into be a member of a group unless a member of such group has filed statements regarding the Mergersecurities of the Company pursuant to Regulation 13D-G under the Exchange Act stating that Genentech or its Affiliate(s) is a member of such group.