338(h)(10) Election. (a) At the election of Buyer, and following a direction from Buyer, the Company, its Subsidiaries and the Seller agree to join with Buyer in making an election under Section 338(h)(10) of the Code (and any corresponding election under state or local tax law) with respect to the purchase and sale of the Shares hereunder (the “Section 338 Election”). If Buyer has notified Seller of its election to make a Section 338 Election, Seller and Buyer agree to cooperate in good faith with each other in the preparation and timely filing of the Section 338 Forms and any Tax Returns required to be filed in connection with the making of such an election. Seller shall make available to Buyer such data and other information as may be reasonably requested that is required by Buyer in order to prepare and timely file the Section 338 Forms. In the event a Section 338 Election is made, Buyer and Seller agree to report the transfer of the Shares under this Agreement consistent with such election and this Section 8.11 and shall take no position contrary thereto unless required by applicable law.
(b) Buyer shall be responsible for the preparation and filing of all Section 338 Forms in accordance with applicable law and the terms of this Agreement and shall deliver such Section 338 Forms to Seller no later than ninety (90) days following the Closing Date. Seller shall have the opportunity to review and approve such Section 338 Forms (such approval not to be unreasonably withheld or delayed) and once approved, shall execute and deliver to Buyer the Section 338 Forms within fifteen (15) days of delivery by Buyer.
(c) If the Section 338 Election is made, the allocation of the purchase price for the Shares (and any liabilities of the Company and its Subsidiaries deemed to be assumed for Tax purposes) among the assets of the Company and its Subsidiaries will be made in accordance with a schedule to be prepared by Buyer and delivered to Seller at the same time that the Section 338 Forms are delivered to Seller in accordance with paragraph (b) above (the “Allocation”). If, within thirty (30) days after the receipt of the Allocation, Seller notifies Buyer that Seller objects to one or more items reflected in the Allocation, then Seller and Buyer shall negotiate in good faith to resolve such dispute. If Seller and Buyer fail to resolve any such dispute within fifteen (15) days (or such longer period as the Parties may mutually agree in writing) after receipt of such objection by Seller, th...
338(h)(10) Election. Provided all of the holders of Seller Common Stock consent to the 338(h)
338(h)(10) Election. With respect to the sale of the Shares pursuant to this Agreement, (a) the Parties have agreed on the form and content of the IRS Form 8023 (the “Form 8023”) on which valid 338(h)(10) Elections shall be made and a copy of such form and content is set forth on Exhibit 4.1(h); (b) at Closing, Sellers shall deliver to Buyer a Form 8023 duly executed by Sellers; (c) Buyer shall be solely responsible for the filing of the executed Forms 8023 with the appropriate Governmental Authority, with proof of filing delivered to Sellers’ Representative; (d) to the extent instructed by Buyer, each of the Sellers and Buyer shall jointly and timely make any elections under any foreign, state or local Tax Law comparable to the 338(h)(10) Elections with respect to the Company; and (e) each of the Parties shall, as promptly as practicable following the date hereof, cooperate with each other to take all other actions necessary and appropriate (including filing IRS Forms 8883 and such other such forms, returns, elections, schedules and other documents as may be required) otherwise to effect and preserve timely 338(h)(10) Elections in accordance with the provisions of Treasury Regulation Sections 1.338-1 and 1.338(h)(10)-1 (or any comparable provisions of foreign, state or local Tax Law) or any successor provisions. Sellers shall pay any Tax imposed on the Company attributable to the making of the §338(h)(10) Election, including (i) any Tax imposed under Code §1374, (ii) any tax imposed under Reg. §1.338(h)(10)-1(d)(2), or (iii) any state, local, or non-U.S. Tax imposed on the Company’s gain, and Sellers shall indemnify Buyer for any liability arising out of any failure to pay such Taxes.
338(h)(10) Election. Purchaser may request that the Company and Seller make elections under Section 338(h)(10) of the Internal Revenue Code, or other, similar sections of the Internal Revenue Code (and regulations promulgated thereunder) if it is determined by the parties that such election will not have any adverse impact on Seller.
338(h)(10) Election. (a) Buyer and Seller agree to jointly make the election permitted by Section 338(h)(10) (the “338(h)(10) Election”) of the Code and, if required by Law or if Buyer so requests, such other elections as may be required under corresponding provisions of foreign, state, local or other income tax Law, to treat the Purchase by the Buyer of the Transferred Securities from the Seller as a purchase of the underlying assets of the Company for U.S. federal income tax purposes (and to the extent applicable, for foreign, state, local, and other income tax purposes). Buyer and Seller will jointly make the Section 338(h)(10) election by completing and signing the IRS Form 8023, Elections Under Section 338 for Corporations Making Qualified Stock Purchases, and, if required by Law or if Buyer so requests, such other forms or documents as may be required under corresponding provisions of foreign, state, local, or other income tax law, with respect to the purchase and sale of the Transferred Securities. Buyer and Seller shall each timely file the executed Form 8023 with the Internal Revenue Service, Submission Processing Center, X.X. Xxx 0000, Xxxx Xxxx 0000, Xxxxx XX 00000, via certified mail or in such other manner acceptable to the IRS in which proof of delivery to the IRS is established and each of Buyer and Seller shall provide to the other party a copy evidencing proof of delivery to the IRS by each such party.
(b) Within ninety (90) calendar days after the Closing Date, Buyer shall provide Seller with a complete IRS Form 8883, Asset Allocation Statement Under Section 338, which shall include a proposed schedule (the “Allocation Schedule”) allocating the Purchase Price plus assumed liabilities plus all other items comprising the “adjusted grossed up basis” (within the meaning of Treasury Regulation §1.338-5) among the deemed sale of assets resulting from the making of the Section 338(h)(10) Election, in each case consistent with the allocation methodology set forth on Schedule 7.7(b). The allocation set forth in such Allocation Schedule shall comply with the rules of Sections 338 and 1060 of the Code and the Treasury Regulations promulgated thereunder. The Allocation Schedule shall become final and binding on the parties hereto fifteen (15) calendar days after Buyer provides such schedule to Seller, unless Seller objects in writing to Buyer, specifying the basis for its objection and preparing an alternative allocation. If Seller does object, then Buyer and Seller shal...
338(h)(10) Election. (a) To the extent permitted by applicable Tax laws, Quiksilver and Buyer will jointly make a timely and effective election under Section 338(h)(10) of the Code and Treasury Regulations Section 1.338(h)(10)-1 and, if permissible, any and all similar elections under any applicable state or local income Tax laws with respect to the purchase and sale of the Shares of the Company pursuant to this Agreement (together, the “Section 338(h)(10) Election”). Quiksilver (i) shall include all items of income, gain, loss, deduction, credit and other Tax items resulting from the Section 338(h)(10) Election on its Tax Returns (including consolidated returns) to the extent required by applicable law and (ii) shall pay any Taxes attributable to making the Section 338(h)(10)
338(h)(10) Election. Seller and Xxxxxxx hereby covenant and agree with Buyer that, if the Buyer so determines that a Section 338(h)(10) Election should be made, the Seller and Xxxxxxx will join in the making of an election under Section 338(h)(10) of the IRC. The Buyer shall be responsible for the preparation and filing of such IRS forms and other documents that may be required to effect the 338(h)(10) election for federal and state income tax purposes, and Seller and Xxxxxxx agree to provide Buyer with such information as may be required to properly complete any such forms and other documents, and shall execute such forms and documents. The Buyer, Seller and Xxxxxxx agree that for purposes of allocating the consideration being paid (which shall equal the Purchase Price, as adjusted, plus the liabilities being assumed or to which the assets being acquired under this Agreement are subject) amongst the assets of the Company in order to compute the amount of taxable gain resulting from the “deemed) sale of assets (as required by IRC Section 338(h)(10) and the regulations thereunder), the residual method of allocation shall be used. For purposes of computing gain or loss with respect to any goodwill or going concern value of the Company, the excess of the total amount of consideration “deemed” paid over the adjusted basis (as last determined on the Company’s tax books and records) of the Company’s assets (other than goodwill and going concern value) shall be allocated and be considered to be paid for the Company’s goodwill and going concern value. For purposes of computing gain or loss on the Company’s assets other than goodwill and going concern value, that portion of the consideration equal to the adjusted basis of the Company’s assets (other than goodwill and going concern value) shall be allocated to each such Company asset in an amount equal to such adjusted basis. In the event that a determination is made by the IRS or another taxing authority that results in an assessment of tax as a result of a re-allocation of consideration from goodwill or going concern value and to another Company asset that is taxed at other than the more favorable capital gain’s rate, then Buyer shall pay to Seller an amount equal to: (a) the amount obtained when (i) the amount of such gain so computed which is subject to taxation at income tax rates other than capital gains rates is multiplied by (ii) the difference between the income tax rate at which such gain is taxed minus the capital gains tax r...
338(h)(10) Election. Buyer and Seller shall join in making a valid, timely election under Section 338(h)(10) of the Code (and any corresponding elections under state and/or local tax law, collectively, a “338(h)(10) Election”) with respect to the Buyer’s acquisition of the Shares in accordance with applicable statutes, rules and regulations, including IRS Form 8023 and Treasury Regulation Section 1.338(h)(10)-1. Seller shall deliver or cause to be delivered to Buyer at Closing IRS Form 8023 properly and fully executed and completed with respect to Buyer's acquisition of the Shares. Buyer shall prepare a properly and fully completed IRS Form 8883 pursuant to Treasury Regulation Section 1.1060-1 or shall take such other action required pursuant to the Treasury Regulations under Section 338(h)(10) of the Code to report the allocation of the Purchase Price (the “Purchase Price Allocation”). Seller agrees that, within fifteen (15) days of receiving the Purchase Price Allocation, complying with the requirements of the preceding sentences it shall sign the Purchase Price Allocation and return an executed copy thereof to the Buyer. Neither Seller nor Buyer shall, nor shall permit any of their Affiliates to, file any Tax Return, or take any position with a taxing authority, that is inconsistent with the Purchase Price Allocation.
338(h)(10) Election. The parties shall each cause to be made, or otherwise take all actions consistent with causing to be made, an election to treat the transaction contemplated by this Agreement under Section 338(h)(10) of the Code. In connection with the 338(h)(10) election, for tax and accounting purposes, the parties agree to allocate all consideration under this Agreement in accordance with Schedule 6.9 (the “Allocation”). The parties shall also allocate and report any adjustments to the Final Closing Consideration (including pursuant to Section 1.3(e) or Section 7.9) in accordance with the Allocation. The parties agree that all income and other Tax returns and information reports will be prepared and filed in a manner consistent with the Allocation, and no party hereto will take any position inconsistent with the Allocation in any subsequent returns or proceedings. Each party shall furnish or cause to be furnished to the other, upon request, as promptly as practicable, such information and assistance relating to the Company as is reasonably necessary for the proper filing of Tax returns and the making of the Tax election described in this Section.
338(h)(10) Election. At Old Second’s option, and as promptly as Old Second shall reasonably determine following the Effective Time, an election under Section 338(h)(10) of the Code and equivalent elections under applicable state law (the “338(h)(10) Election”) shall be made in connection with the Merger. Not less than ten (10) Business Days prior to the Closing, Old Second shall (i) prepare an allocation statement, showing an allocation of the Merger Consideration among the assets of HeritageBanc in accordance with Sections 338 and 1060 of the Code and any comparable provisions of state, local or foreign law, as appropriate, and (ii) provide such allocation statement to the Shareholder Representative. Within five (5) Business Days of receiving the allocation statement from Old Second, the Shareholder Representative shall review and comment on such allocation statement, and, prior to the Closing, Old Second shall make any such changes that are reasonably requested. If Old Second chooses to make the 338(h)(10) Election, then such election, and all Tax filings made subsequent to the filing of such election, shall be made in a manner consistent with the allocation statement contemplated herein.
