This excerpt taken from the ABII 10-Q filed Dec 20, 2007.
The following provisions shall apply from and after the Distribution Date.
SECTION 4.01. Inconsistent Actions. Each party hereto agrees to, and to cause each of its Affiliates to, (a) report the Alpha Merger as a tax-free reorganization within the meaning of Section 368(a)(1)(F) of the Code, the Alpha Contribution followed by the Share Distribution as a tax-free reorganization within the meaning of Section 368(a)(1)(D) of the Code, and the Share Distribution as a distribution qualifying for nonrecognition under Sections 355(a) and 361(c) of the Code on all Tax Returns and other filings, (b) comply with and take no action inconsistent with the representations and covenants provided to the IRS in connection with obtaining the Private Letter Ruling, and (c) for the Restricted Period, not fail to be engaged in the conduct of the active trade or businesses relied upon for purposes of satisfying the requirements of Section 355(b) of the Code for purposes of the Private Letter Ruling. For all Post-Distribution Periods, each party to this Agreement agrees to, and to cause each of its Affiliates to, in the absence of a controlling change in Applicable Laws or circumstances, report on all Tax Returns the Tax consequences of the transactions undertaken pursuant to the Transaction Agreements in accordance with the positions taken with respect to such transactions to the extent reported on Covered Group Returns filed in respect of such transactions.
SECTION 4.02. Prohibited Acts.
(a) For 24 months following the Distribution Date (the Restricted Period), each of the Generico Parties and their Affiliates, on the one hand, and each of the Alpha Parties and its Affiliates, on the other hand, agree that they will not (i) redeem or otherwise repurchase any capital stock of Gholdco or New Alpha other than pursuant to open market stock repurchase programs meeting the requirements of Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696, or (ii) enter into any agreements or arrangements with respect to transactions or events (including, but not limited to, capital contributions or acquisitions, entering into any partnership or joint venture arrangements, stock issuances, stock acquisitions, option grants, or a series of such transactions or events (but excluding the Share Distribution)), in the case of each of clauses (i) and (ii) above that, if considered part of a plan that includes the Share Distribution would result in one or more Persons acquiring, directly or indirectly, stock of Gholdco or New Alpha representing a 50-percent or greater interest therein within the meaning of Section 355(d)(4) of the Code (any act inconsistent with the acts described in Section 4.01 hereof and any act described in clauses (i) and (ii) above, collectively, the Prohibited Acts). Notwithstanding the foregoing, the following shall not be considered a Prohibited Act: (v) the issuance of any compensatory options by Gholdco, (w) the issuance of any Gholdco stock pursuant to any Gholdco compensatory option or restricted stock unit, and (x) the repurchase of any Gholdco restricted stock, in each case described in clauses (v), (w) and (x), if such action satisfies the conditions of Treasury Regulation § 1.355-7(d)(8)(i), and (y) the issuance of stock to a retirement plan qualified under Section 401(a) or 403(a) of the Code in a transaction that satisfies the requirements of Treasury Regulation Section 1.355-7(d)(9). For the avoidance of doubt, any issuance of additional equity or rights to acquire new equity by Gholdco to new investors during the Restricted Period shall be considered a Prohibited Act.
(b) Notwithstanding the foregoing, a party may take any of the Prohibited Acts, subject to Section 2.04, if, (i) in the case of the Alpha Parties and their Affiliates, (A) New Alpha first obtains (at its expense) an opinion in form and substance reasonably acceptable to Gholdco of Fried, Frank, Harris, Shriver & Jacobson LLP or another nationally recognized law firm or big four accounting firm reasonably acceptable to Gholdco, which opinion may be based on usual and customary factual representations, or (B) at New Alphas request, Gholdco (at New Alphas expense) obtains a supplemental ruling from the IRS, or, (ii) in the case of Gholdco and its Affiliates, (A) Gholdco first obtains (at its expense) an opinion in form and substance reasonably acceptable to New Alpha of a nationally recognized law firm or big four accounting firm reasonably acceptable to New Alpha, which opinion may be based on usual and customary factual representations or (B) Gholdco (at its expense) obtains a supplemental ruling from the IRS, in each case that such Prohibited Act(s), and any transaction related thereto, should not affect (i) the qualification of the Share Distribution under Section 355 and Section 368(a)(1)(D) of the Code and (ii) the nonrecognition of gain to Gholdco in the Share Distribution. A party may also take any of the Prohibited Acts, subject to Section 2.04, with the written consent of the other party in the other partys sole and absolute discretion. During the Restricted Period, the parties shall provide, and shall cause their respective
Affiliates to provide, all information reasonably requested by the other party relating to any transaction involving an acquisition (directly or indirectly) of that partys stock within the meaning of Section 355(e) of the Code. The parties hereto agree that the payment of monetary compensation would not be an adequate remedy to a breach of the obligations described in the Prohibited Acts, and each party consents to the issuance and entry of an injunction to prevent a breach of the obligations contained in the Prohibited Acts, subject to the waiver and consent described in the preceding sentence. New Alpha represents that, to its knowledge, from the date of this Agreement until the time of the Share Distribution, and except as contemplated by the Transaction Agreements, there will be no agreement, understanding, arrangement or substantial negotiations by Gholdco (or any of its Subsidiaries) concerning any acquisition of Gholdco stock for purposes of applying Treas. Reg. § 1.355-7(d)(3) and an opinion and/or ruling obtained in accordance with Section 4.02(b)(ii) may assume the accuracy of such representation.
(c) Notwithstanding anything in this Agreement to the contrary, a party shall be responsible for, and shall indemnify the other party and hold the other party harmless from, any Restructuring Taxes resulting from any Prohibited Act taken by such party or any of their Affiliates, regardless of whether the exception contained in Section 4.02(b) is satisfied with respect to such act.
SECTION 4.03. Cooperation with Respect to Tax Return Filings, Examinations and Tax Related Controversies. In addition to any obligations imposed pursuant to the Separation Agreement, each party shall fully cooperate with the other party and its representatives, in a prompt and timely manner, in connection with (i) the preparation and filing of and (ii) any inquiry, audit, redetermination, examination, investigation, dispute, or litigation involving, any Tax Return required to be filed by such other party pursuant to this Agreement. Such cooperation shall include, but not be limited to, (A) the execution and delivery to such other party of any power of attorney required to allow such other party and its counsel to participate in or control any inquiry, audit or other administrative proceeding and to assume the defense or prosecution, as the case may be, of any suit, action or proceeding pursuant to the terms of and subject to the conditions set forth in Article III, and (B) making available, during normal business hours, and within 15 days of any written request therefor, all books, records and information, and the assistance of all officers and employees, necessary or useful in connection with the preparation of any Tax return or any Tax inquiry, audit, redetermination, examination, investigation, dispute, litigation or any other matter. Any recoveries by the Generico Parties, the Alpha Parties, or any of their respective Affiliates against third parties (including awards for damages) relating to Restructuring Taxes shall be shared and allocated by the parties consistently with the allocation of the underlying Restructuring Taxes.