338 Election Clause Samples

338 Election. The Stockholders will join with Buyer in making an election under ss.338(h)(10) of the Code (and any corresponding elections under state, local or foreign tax law) with respect to the purchase and sale of the stock of the Company (a "SS.338(H)(10) ELECTION"). Buyer shall be responsible for preparing the form of election. Buyer shall be responsible for preparing the form of election. Buyer and the Stockholders shall cooperate fully in the making of such ss.338(h)

338 Election. Each of the Stockholders agree, if so directed by Parent, to join with Parent and Newco in making an election under Section 338(h) of the Code (and any corresponding elections under state, local, or foreign tax law) with respect to a purchase and sale of the Company Stock; PROVIDED HOWEVER, that no election shall be made if, as a result of the election, the Stockholders would incur any adverse tax or other consequences not otherwise reimbursed by Parent or Newco to the Stockholders.

338 Election. Purchaser and its Affiliates shall not make any election under Section 338 or Section 336(e) of the Code or under any state, local, or foreign Law equivalent in respect of the transaction pursuant to this Agreement.

338 Election. 50 AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of the 10th day of March, 1999, by and among THE ALLIANCE GROUP, INC., an Oklahoma corporation ("Parent"), ALLIANCE ACQUISITION VIII CORP., an Oklahoma corporation ("Newco"), COMMERCIAL TELECOM SYSTEMS, INC., an Oklahoma corporation (the "Company"), and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇, the only stockholders of the Company (collectively, the "Stockholders").

338 Election. For U.S. tax purposes, the transactions contemplated by this Agreement are intended to qualify as a “qualified stock purchase” within the meaning of Section 338(d) of the Code (and any similar provisions of state, local or other applicable law) and none of the Sellers (or their Affiliates) will take a contrary position on any Tax return. The Purchaser and its Affiliates may, at the Purchaser’s sole discretion, make an election pursuant to Section 338 of the Code (and any similar provisions of state, local or other applicable law) with respect to the acquisition of the Acquired Companies. If required, Sellers and Sellers’ Agent will provide reasonable cooperation with the making of such elections.

338 Election. Parent agrees that an election under section 338 of the Code (or similar or comparable provision of the Law of any state or other Taxing Authority) shall not be made with respect to the Company or any of its Subsidiaries in connection with the transactions contemplated hereby.

338 Election. Buyer and Seller will each execute and file the 338 Election in the manner prescribed by applicable regulations for doing so.

338 Election. (a) Buyer and Seller agree to make or cause to be made with respect to the sale and purchase of Units, a timely, effective and irrevocable election under Section 338(h)(10) of the Code (and any corresponding election under applicable state or local Tax laws) for each Group Company that is treated as a domestic corporation for U.S. federal income tax purposes and to file such elections in the manner required by applicable rules and Treasury Regulations (the “Section 338(h)(10) Elections”). At the Closing, Seller shall deliver to Buyer IRS Form 8023 and any similar forms under state or local law (including any exhibits and attachments thereto) with respect to Buyer’s purchase of Units (collectively, the “Section 338(h)(10) Forms”), which Section 338(h)(10) Forms shall have been duly executed by Seller. Buyer shall: (i) cause the applicable Section 338(h)(10) Forms to be duly executed by an authorized person for Buyer; (ii) complete the schedules required to be attached thereto; (iii) provide a copy of the executed Section 338(h)(10) Forms and schedules to Seller; and (iv) duly and timely file the Section 338(h)(10) Forms as prescribed by Treasury Regulations Section 1.338(h)(10)-1 or applicable provision under state or local law. Seller and Buyer shall cooperate with each other to take all actions necessary and appropriate (including filing Section 338(h)(10) Forms) to effect a timely Section 338(h)(10) Election. (b) Buyer and Seller hereby mutually agree that the “Aggregate Deemed Sale Price” (as defined under applicable Treasury Regulations) of the assets of the Group Companies shall be allocated for federal and other applicable income Tax purposes among the assets of the Group Companies in accordance with Schedule 5.13.4 (the “Section 338(h)(10) Allocation”). Buyer shall prepare the Section 338(h)(10) Allocation in accordance with the preceding sentence and provide a draft copy of such statement to Seller within ninety (90) days following the determination of the Final Purchase Price Adjustment pursuant to Section 2.2(g). Buyer shall consider in good faith any comments to the Section 338(h)(10) Allocation received by Seller within 30 days of Seller’s receipt of the draft Section 338(h)(10)

338 Election. The parties understand and agree that an election will be made under Section 338(g) of the U.S. Internal Revenue Code for the Corporation and any of its eligible subsidiaries (other than any subsidiary that is treated as a U.S. corporation under U.S. federal Tax laws). The parties agree to cooperate as reasonably required to effectuate said election.