Section 338 Election. No election under Section 338 has been made by or with respect to any of the Acquired Corporations or any of their respective assets or properties within the last three taxable years.
Section 338 Election. Purchaser shall not make, nor permit its Affiliates to make, any election under Section 338 of the Code (or any analogous provision of state, local or non-U.S. Law) with respect to the sale of any Group Company.
Section 338 Election. (i) Except as provided in clause (ii) below, neither Buyer nor Seller nor any of their Affiliates shall make or cause to be made any election under Section 338 of the Code in connection with the transactions contemplated by this Agreement.
Section 338 Election. (i) At the sole election of the Buyer, to be exercised within ninety (90) days after the Closing Date, the Seller Entities and Buyer will jointly complete and make an election under Section 338(h)(10) of the Code (with respect to the Company) on Form 8023 or in such other manner as may be required by rule or regulation of the Internal Revenue Service, and will jointly make an election in the manner required under any analogous provisions of state or local law as the Buyer will designate or as will be required, concerning the transactions contemplated by this Agreement (collectively and specifically, the “Section 338(h)(10) Election”). The Buyer will, with the assistance and cooperation of the Seller Entities, prepare all such Section 338(h)(10) forms required as attachments to Form 8023 (and all forms under analogous provisions of state or local law) in accordance with applicable Tax laws, and Buyer will deliver such forms and related documents to the Seller Entities at least sixty (60) days prior to the due date of filing. The Seller Entities will deliver to the Buyer at least forty five (45) days prior to the due date of filing copies of such completed and fully executed forms as are required to be filed under Section 338(h)(10) of the Code (and analogous provisions of state and local law). The Buyer will timely file such forms with the appropriate Tax authorities. The Buyer and Seller Entities will use commercially reasonable efforts to agree, as soon as practicable after Closing but in no event later than one hundred twenty (120) days following the Closing Date (subject to the dispute resolution mechanism described in clause (ii) below), on the computation of the modified aggregate deemed sale price (“MADSP”) (as defined under U.S. Department of Treasury Regulations).
Section 338 Election. Buyer shall not, and shall not permit the Company to make an election under Section 338 of the Code (or any corresponding election under state or local Laws) with respect to the purchase and sale contemplated hereunder
Section 338 Election. Section 11.5(a)........................................62
Section 338 Election. No election under Section 338 of the Code has been made by or with respect to any of the Parent or its Subsidiaries or any of their respective assets or properties.
Section 338 Election. Notwithstanding anything to the contrary contained in this Agreement, if Purchaser or any Affiliate of Purchaser acquires or becomes the owner, for U.S. federal income tax purposes, of any Company Shares (other than Company Shares held by Holdings) at any time that Holdings is the owner, for U.S. federal income tax purposes, of any Company Shares, neither Purchaser nor any Affiliate of Purchaser shall make, or permit to be made, an election under Section 338 of the Code with respect to such Company Shares or with respect to any of the transactions contemplated by this Agreement, unless the Company provides prior express written consent to any such election.
Section 338 Election. The Purchaser may make an election under Section 338 of the Internal Revenue Code with respect to acquired Subsidiaries (and the Company shall cooperate with the Purchaser in making such election and shall take such actions as reasonably requested by the Purchaser to make such election).
Section 338 Election. Buyer reserves the right to make an election under Section 338(g) of the Code ("Section 338 Election”) with respect to each Acquired Entity and Seller Parties agree to provide whatever assistance reasonably required by Buyer to determine whether such election may be made. Notwithstanding anything in this Agreement to the contrary, if any Section 338 Election is made, Buyer shall indemnify and hold harmless the Sellers and shall pay the amount, if any, that the Adjusted Seller Taxes exceed the Base Seller Taxes (“Additional Taxes”). The “Adjusted Seller Taxes” is defined herein as the aggregate amount of Taxes that Sellers, the Acquired Entities and their Subsidiaries are required to pay or otherwise be responsible for paying or indemnifying Buyer under this Agreement (but for this indemnification for Additional Taxes) if a Section 338 Election is made, including any additional Taxes resulting from Buyer’s indemnification or payment to Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make a Section 338 Election. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a Section 338 Election (i.e. sale of the underlying assets) or without a Section 338 Election (i.e. sale of the Shares), as the case may be, and shall not take into consideration and shall otherwise ignore any post-acquisition Tax benefits that may be derived or lost by any of the Acquired Entities or their Subsidiaries as a result of the Transactions with or without any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis in the underlying assets of any such entities.
