Virginia
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6798
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26-1379210
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(State or other jurisdiction of incorporation or organization)
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(Primary Standard Industrial Classification Code Number)
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(I.R.S. Employer
Identification Number) |
Paul D. Manca
Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 |
David W. Robertson
McGuireWoods LLP Gateway Plaza 800 East Canal Plaza Richmond, Virginia 23219 (804) 775-1000 |
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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☐(Do not check if a smaller reporting company)
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Smaller reporting company
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(a)
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The undersigned registrant hereby undertakes as follows:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
The registrant undertakes that every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(d)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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Apple Hospitality REIT, Inc.
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By:
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/s/ Justin G. Knight
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Name: Justin G. Knight
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Title: President and Chief Executive Officer
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Name
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Title
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Date
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/s/ Justin G. Knight
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Justin G. Knight
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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September 1, 2016
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/s/ Bryan F. Peery
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Bryan F. Peery
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
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September 1, 2016
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*
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Glade M. Knight
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Executive Chairman of the Board
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September 1, 2016
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*
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Glenn W. Bunting
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Director
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September 1, 2016
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*
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Jon A. Fosheim
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Director
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September 1, 2016
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*
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Bruce H. Matson
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Director
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September 1, 2016
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*
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Daryl A. Nickel
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Director
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September 1, 2016
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*
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L. Hugh Redd
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Director
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September 1, 2016
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Exhibit
Number
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Description
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2.1**
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Agreement and Plan of Merger, dated as of April 13, 2016, as amended, among Apple REIT Ten, Inc., Apple Hospitality REIT, Inc., and 34 Consolidated, Inc. (attached as Annex A to the joint proxy statement/prospectus which is part of this registration statement) (the registrant hereby agrees to furnish supplementary a copy of any omitted schedule or exhibit to the SEC upon request).
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3.1
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Amended and Restated Articles of Incorporation of Apple Hospitality REIT, Inc., as amended (Incorporated by reference to Exhibit 3.1 to the registrant’s Annual Report on Form 10-K (SEC File No. 000-53603) filed March 6, 2015)
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3.2
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Second Amended and Restated Bylaws of Apple Hospitality REIT, Inc. (Incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K (SEC File No. 001-37389) filed February 18, 2016)
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5.1**
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Opinion of Hogan Lovells US LLP regarding legality of Apple Hospitality REIT, Inc. common shares being registered
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8.1*
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10.1
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Voting Agreement, dated as of April 13, 2016 among Apple REIT Ten, Inc. Apple Hospitality REIT, Inc. and Glade M. Knight (Incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K (SEC File No. 001-37389) filed April 14, 2016)
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10.2
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Termination Agreement, dated as of April 13, 2016, among Apple Ten Advisors, Inc., Apple Suites Realty Group, Inc., Apple REIT Ten, Inc. and Apple Hospitality REIT, Inc. (attached as Annex C to the joint proxy statement/prospectus which is part of this registration statement)
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21.1**
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Subsidiaries of Apple Hospitality REIT, Inc.
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23.1**
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Consent of Hogan Lovells US LLP (included in Exhibit 5.1).
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23.2**
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Consent of Ernst & Young LLP, independent registered public accounting firm for Apple Hospitality REIT, Inc.
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23.3**
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Consent of Ernst & Young LLP, independent registered public accounting firm for Apple REIT Ten, Inc.
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23.4*
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24.1**
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Power of Attorney (included on signature page to this Registration Statement)
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99.1**
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Form of Proxy Card for holders of Apple Hospitality common shares
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99.2**
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Forms of Proxy Cards for holders of Apple Ten units and holders of Apple Ten Series B convertible preferred shares
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99.3**
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Consent of Citigroup Global Markets Inc.
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99.4**
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Consent of Robert W. Baird & Co. Incorporated
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*
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Filed herewith.
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**
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Previously filed.
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Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com
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1.
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(A) All information contained in each of the documents we have examined and upon which we have relied in connection with the preparation of this opinion is accurate and completely describes all material facts relevant to our opinion, (B) all copies are accurate, (C) all signatures are genuine, and (D) all documents have been or will be, as the case may be, timely and properly executed.
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2.
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There will have been, by the Effective Time, or at such other time as contemplated in the Merger Agreement, due execution and delivery of all documents, where due execution and delivery are prerequisites to the effectiveness thereof.
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3.
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To the extent relevant to our opinion, all representations, warranties, and statements made or agreed to by the Parent and the Merger Sub, and by the Company, their respective managers, employees, officers, directors, and stockholders in connection with the Merger, including, but not limited to, those in the Reviewed Documents (including the Tax Certificates), have been and will continue to be true, complete, and accurate in all respects; any representation or statement made in the Tax Certificates "to the best of knowledge," "to the knowledge," or "to the actual knowledge" of any person(s) or party(ies)—or similarly qualified—is true, correct, and complete, as if made without such qualification.
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4.
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The Merger Agreement is valid and binding in accordance with its terms. The Merger will be consummated in accordance with the Merger Agreement (including satisfaction of all pre-closing covenants and conditions to the obligations of the parties, without amendment, waiver, or breach thereof). The Merger will qualify as a merger under the applicable laws of the Commonwealth of Virginia.
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5.
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Commencing not later than its taxable year ended December 31, 2008, the Parent has qualified as a REIT under the Code, and will continue to qualify as a REIT under the Code for its taxable year which includes the Effective Time and thereafter.
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6.
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Commencing not later than its taxable year ended December 31, 2011 and ending with its taxable year that ends with the Merger, the Company has qualified as a REIT under the Code.
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7.
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Each of the Parent and the Company will comply with all reporting obligations with respect to the Merger required under the Code and the Treasury Regulations thereunder.
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8.
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The McGuireWoods Opinion is being delivered to the Company concurrently herewith in the form provided to us, and the McGuireWoods Opinion has not been and will not be modified or withdrawn.
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1.
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The opinion set forth in this letter is based on relevant current provisions of the Code, the Treasury Regulations thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions, applicable legislative history, and the administrative rulings and practices of the IRS, including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling, all as of the date hereof. These provisions and interpretations are subject to change by the IRS, Congress, and the courts (as applicable), which change may or may not be retroactive in effect and which might result in material modifications of our opinion. Our opinion does not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, nor of a contrary position taken by the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard, an opinion of counsel with respect to an issue represents counsel's best professional judgment with respect to the outcome on the merits with respect to such issue, if such issue were to be litigated, but an opinion is not binding on the IRS or the courts and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position asserted by the IRS. Neither the Parent nor the Company has requested or will request a ruling from the IRS as to any of the U.S. federal income tax consequences addressed in this opinion. Furthermore, no assurance can be given that future legislative, judicial, or administrative changes, including on a retroactive basis, would not adversely affect the accuracy of the opinion expressed herein.
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2.
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This letter addresses only the specific tax opinion set forth above. Our opinion does not address any other U.S. federal, state, local, or non-U.S. tax consequences that will or may result from the Merger or any other transaction (including any transaction undertaken in connection with the Merger or contemplated by the Merger Agreement).
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3.
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Our opinion set forth herein is based upon, among other things, the description of the contemplated transactions (including the Merger) as set forth in the Merger Agreement. No opinion is expressed as to any transaction other than those set forth in the Merger Agreement, or to any transaction whatsoever, including the Merger, unless all the transactions described in the Merger Agreement (or otherwise contemplated in connection with the Merger) have been consummated in accordance with the terms of the Merger Agreement (and also without amendment, waiver, or breach of any provision thereof), and also unless all of the representations, warranties, statements, and assumptions upon which we have relied are true, complete, and accurate at all times. In the event that the actual facts relating to any aspect of the relevant transactions (including the Merger) differ from the terms of the Merger Agreement (without amendment, waiver, or breach of any material provision thereof), or if any one of the representations, warranties, statements, or assumptions upon which we have relied to issue this opinion is incorrect, our opinion might be adversely affected and may not be relied upon.
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