Code Section 338 Election. At the Purchaser’s option, Seller shall join with Purchaser in making an election under Section 338(h)(10) of the Code (and any corresponding elections under state, county, local, foreign or other Tax Laws) (collectively, a “Code Section 338(h)(10) Election”) with respect to the purchase and sale of the Shares (as well as the deemed purchase and sale of the shares or equity interests of each of the Subsidiaries, as applicable) pursuant to this Agreement. Purchaser, at its expense, shall prepare, or cause to be prepared, the forms and schedules (including IRS Form 8023) and take such other steps that are necessary to effect the Code Section 338(h)(10)
Code Section 338 Election. The parties hereto acknowledge that Acquiror may choose to make a regular Code Section 338 election on a timely basis to treat the Merger as a purchase of the Company’s assets for Tax purposes. The Company shall cooperate with Acquiror to provide Acquiror with such information as is reasonably necessary for Acquiror to satisfy its notification requirements in connection with such election.
Code Section 338 Election. In the event Buyer provides Seller with written notice of its intent to make an election in accordance with the provisions of Code Section 338(h)(10) Code within sixty (60) days after the Closing Date, Buyer and Seller hereby agree that they shall elect to treat the purchase of the Transferred Equity Interests in accordance with the provisions of Code Section 338(h)(10) and Treasury Regulation Section 1.338(h)(10)-1. In such a case, Buyer and Seller shall jointly make a timely election pursuant to Code Section 338(h)(10) with respect to the purchase and sale of the Transferred Equity Interests hereunder.
Code Section 338 Election. (i) Parent, Seller and Buyer agree that, for federal Tax purposes, the purchase and sale of the shares of the Company pursuant to this Agreement shall be treated as a purchase and sale of the assets of the Company in accordance with the provisions of Code Sections 338(g) and 338(h)(10) and any similar provision of state law. Parent, Seller and Buyer agree to make timely elections pursuant to Code Sections 338(g) and 338(h)(10) in accordance with all applicable law and regulations and in accordance with the provisions of this Section 6.13(f).
(ii) The Seller shall pay any and all Taxes attributable to the recognition of income or loss by Seller and the Company from the treatment, pursuant to the elections described in Section 6.13(f)(i), of the purchase and sale of the shares of the Company pursuant to this Agreement as a purchase and sale of the assets of the Company.
(iii) Buyer, Parent and the Seller shall cooperate in the preparation of Internal Revenue Service Form 8023A, the required schedules thereto, and all requisite State forms and schedules (the "Forms") providing for the elections described in Section 6.15(f)(i)(A) and/or (B) with respect to the Company.
(iv) Within 90 days of the Closing, Buyer shall provide to Seller and Parent a written schedule (the "Allocation Schedule") allocating the ------------------- Modified Adjusted Deemed Sales Price (as defined in Treas. Reg. (S) 1.338(h) (10)-1(f)) among the assets of the Company transferred by Seller hereunder. The Allocation Schedule shall be prepared in a manner consistent with the applicable Treasury Regulations. Parent and Seller shall have 10 days to object to the Allocation Schedule and Buyer, Parent and Seller agree to negotiate in good faith and jointly agree on a final allocation (the "Final Allocation Schedule"). ------------------------- Buyer, Parent and Seller each agrees to file (and to cause their respective affiliates to file) all federal, state, local and foreign Tax Returns and the Forms in a manner consistent with the Final Allocation Schedule.
Code Section 338 Election. Acquiror shall be entitled, in its discretion, to elect under Section 338 of the Internal Revenue Code of 1986, as amended, to treat the transactions contemplated hereby as an asset purchase for United States federal income tax purposes.
Code Section 338 Election. At Buyer's option, the Stockholders will join with Buyer in making an election under Code Sections 338 (and any corresponding elections under state, local or foreign tax law) (collectively, a "Section 338 Election") with respect to the purchase and sale of the stock of either Company or both Companies. In connection therewith, the Stockholders shall cooperate in executing and filing all returns, reports, documents or elections required to be executed and filed. Buyer covenants and agrees to indemnify and hold the Stockholders harmless from any and all Taxes incurred by the Stockholders as a result of making the Section 338 Election.
Code Section 338 Election. For federal income tax purposes Buyer may treat the acquisition of the Stock as an acquisition of the Assets in accordance with the applicable provisions of Section 338 of the Code. Consequently, the parties and the Companies, through their duly authorized representatives, shall execute and file any consent or other document required to be filed with the Internal Revenue Service in connection with the election to treat the acquisition of the Stock as an acquisition of the Assets under the applicable provisions Section 338 of the Code, including, but not limited to, the execution and filing of Form 8023 entitled “Corporate Qualified Stock Purchase Elections.” In addition, it is agreed that (i) the book value of the depreciable portion of the Assets recorded on the books and records of the Companies and reflected in the Balance Sheets, and (ii) the amount allocated to the goodwill of the Companies and to be recorded on the books and records of Buyer as a result of the transactions contemplated hereby fairly represent the fair market value of such Assets, respectively, as of the Closing Date. Notwithstanding anything to the contrary herein contained, Buyer shall be responsible for filing the short-year “C” corporation returns, including the short-year that begins on the Closing Date, and Buyer shall be responsible for, and indemnify and hold harmless Sellers from any liability with respect to, the payment of the tax due on such short-year “C” corporation return. For purposes of the Section 338 election, Sellers and Buyer agree that the Purchase Price shall be allocated among the assets of the Companies as follows:
(i) 74.075% to capital assets;
(ii) 19.753% to goodwill; and
(iii) 6.172% to depreciable assets.
Code Section 338 Election. Sellers acknowledge and agree that Buyer intends to effect and preserve a timely Section 338(h)(10) election in accordance with the requirements of Section 338 of the Code (and any corresponding elections under state or local Tax Law) in respect of Buyer’s purchase of the Purchased Shares hereunder. The Company and Sellers shall join with Buyer in making an election under Section 338(h)(10) (and any corresponding election under state, local and foreign Tax law) with respect to the purchase and sale of the Purchased Shares (collectively, a “Section 338(h)(10) Election”). Sellers shall include any income, gain, loss, deduction or other Tax items resulting from the Section 338(h)(10) Election on their Tax Returns to the extent required by applicable Law. Sellers shall also pay any Tax imposed on the Company attributable to the making of the Section 338(h)(10) Election, including (i) any Tax imposed under Section 1374 of the Code, (ii) any Tax imposed on the Company’s gain, and Sellers shall indemnify Buyer, Company against any Losses arising out of any failure to pay such Taxes. If the Parties are unable to mutually agree upon an allocation of the Purchase Price among the assets of the Company to effect the Section 338(h)(10) Election prior to the Closing Date, the Parties shall jointly designate a qualified appraiser, at the expense of Buyer, who will determine the fair market value of the Company’s assets, which determination will be used as the basis for such allocation. The allocation of the Purchase Price among the assets of the Company, as determined in accordance with the preceding sentence, shall be attached hereto as Schedule 2.5 of the Disclosure Schedule prior to the Closing Date. Sellers and Buyer shall report the sale of the Purchased Shares consistently in accordance with such purchase price allocation and shall take no position contrary thereto or inconsistent therewith in any Tax Return, and discussion with or proceeding before any taxing authority, or otherwise.
(a) Sellers shall reasonably cooperate with Buyer and make available to Buyer such Tax data and other information as may be required by Buyer to timely file the Section 338(h)(10)
Code Section 338 Election. Parent or any Affiliate may make, in its sole discretion, any election under Code Section 338 with respect to the acquisition of Company Capital Stock pursuant to this Agreement.
Code Section 338 Election. Purchaser and Seller shall make an election under Section 338(h)(10) of the Code (and, to the extent requested by Purchaser, any corresponding elections under state or other Tax Laws) (each, a “Code Section 338(h)(10) Election”) with respect to the purchase and sale of the stock of any Purchased Subsidiary that is treated as a corporation for U.S. federal income tax purposes pursuant to this Agreement. Purchaser, at its expense, shall prepare, or cause to be prepared, the forms and schedules (including IRS Form 8023) and take such other steps that are necessary to effect the Code Section 338(h)(10)
