Common use of Section 338 Elections; Election Allocations Clause in Contracts

Section 338 Elections; Election Allocations. (a) Seller will join with Purchaser in making an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local or foreign law, or elections corresponding to Section 338(g) of the Code and corresponding elections under state, local or foreign law) with respect to the Company and any of its subsidiaries as designated by Purchaser (each, a “Section 338(h)(10) Election). Seller will pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (b) At the Closing, Seller will deliver to Purchaser an IRS Form 8023, and any similar form provided under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by Seller. As reasonably requested from time to time by Purchaser (whether before, at or after the Closing), seller shall assist and provide the necessary information to Purchaser in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign law and any schedules or attachments thereto (collectively, Section 338 Forms”). Upon delivery of any Section 338 Form by Purchaser to Seller, Seller shall duly and promptly execute such form and deliver it to Purchaser. If Purchaser determines that any change is to be made in a Section 338 Form previously executed and delivered to Purchaser, then Purchaser may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller and Seller shall duly and promptly execute such form and deliver it to Purchaser. (c) With respect to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP among the assets of the Company and/or its subsidiaries, as applicable (the “Election Allocations”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 Form, Purchaser shall prepare and submit to Seller such Section 338 Form setting forth, to the extent required therein, the Election Allocations. Seller and its affiliates will (i) file or cause to be filed all Tax Returns in a manner consistent with the Election Allocation and (ii) not take action inconsistent therewith. (d) For purposes of this Section 9.05:

Section 338 Elections; Election Allocations. (ai) Seller At Purchaser's request, Sellers will join with Purchaser in making an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local local, or foreign law, or elections corresponding to Section 338(g) of the Code and corresponding elections under state, local or foreign law) with respect to the Acquired Company and any of its subsidiaries as designated by Purchaser (each, ( a “"Section 338(h)(10) Election"). Seller will pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (bii) At the Closing, Seller Sellers will deliver to Purchaser an a fully executed IRS Form 80238023 reflecting the Section 338(h)(10) Election, and any similar form provided for under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by Seller. As reasonably requested from time to time by Purchaser (whether before, at or after the Closing), seller Sellers shall assist Purchaser in, and shall provide the necessary information to Purchaser Purchaser, in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign other law and any schedules or attachments thereto (collectively, "Section 338 Forms”"). Upon delivery of any Section 338 Form by Purchaser to SellerSellers, Seller Sellers shall duly and promptly execute cause such form and deliver it to Purchaser. If Purchaser determines that any change is to be made in a Section 338 Form previously executed and delivered to Purchaser, then Purchaser may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller and Seller shall be duly and promptly execute executed and shall deliver such form and deliver it executed Section 338 Form to Purchaser. (ciii) With respect The consideration for the acquisition of the Shares pursuant to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser this Agreement shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP be allocated among the assets Assets of the Company and/or its subsidiaries, as applicable follows: (the “Election Allocations”). The Election Allocations shall be determined A) in accordance with Section 338 of the Code and the applicable Treasury regulations Regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 Form, Purchaser shall prepare and submit to Seller such Section 338 Form setting forth, to the extent required therein, the Election Allocations. Seller and its affiliates will aggregate deemed sales price (i"ADSP") file or cause at which the Company is deemed to be filed all have sold the Assets for Tax Returns in purposes as a manner consistent with result of the Election Allocation and (ii) not take action inconsistent therewith. (d) For purposes of this Section 9.05:338(h)

Section 338 Elections; Election Allocations. (ai) Buyer and Seller will join with Purchaser in making shall jointly make an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, state or local or foreign law, or elections corresponding to Section 338(g) of the Code and corresponding elections under state, local or foreign lawLaw) with respect to the Company PBAM and any of its subsidiaries as designated by Purchaser PBFSI (each, a “Section 338(h)(10) Election”). Seller will shall pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (bii) Buyer shall make an election under Section 338(g) of the Code (and any corresponding elections under state or local Law) with respect to BCL and PBFL (each, a “Section 338(g) Election”). (iii) At the Closing, Seller will deliver to Purchaser Buyer an IRS Form 8023, and any similar form provided for under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by Seller. As reasonably requested from time to time by Purchaser Buyer (whether before, at or after the Closing), seller Seller shall assist and provide the necessary information to Purchaser Buyer in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign other law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Upon delivery of any Section 338 Form by Purchaser Buyer to Seller, Seller shall duly and promptly execute such form and deliver it to PurchaserBuyer. If Purchaser Buyer determines that any change is to be made in a Section 338 Form previously executed and delivered to PurchaserBuyer, then Purchaser Buyer may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller Seller, and Seller shall duly and promptly execute such form and deliver it to PurchaserBuyer. (civ) With respect to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser Buyer shall determine, reasonably and in good faith, and after consultation with Seller determine (i) ADSP and (ii) the allocation of ADSP among the assets of the Company and/or its subsidiariesTransferred Entities, as applicable (the “Election Allocations”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations Regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 Form, Purchaser Buyer shall prepare and submit to Seller such Section 338 Form setting forth, to the extent required therein, the Election Allocations. Seller and its affiliates Affiliates will (i) file or cause to be filed all Tax Returns in a manner consistent with the Election Allocation Allocations and (ii) not take any action inconsistent therewith. (d) For purposes of this Section 9.05:

Section 338 Elections; Election Allocations. (a) Seller will agrees to join with Purchaser in making an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local or foreign law, or elections corresponding to Section 338(g) of the Code and corresponding elections under state, local or foreign law) with respect to the Company and any of its subsidiaries Subsidiaries as designated by Purchaser (each, a “Section 338(h)(10) Election). Seller will pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (b) At the Closing, Seller will deliver to Purchaser an IRS Form 8023, and any similar form provided under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by Seller. As reasonably requested from time to time by Purchaser (whether before, at or after the Closing), seller Seller shall assist and provide the necessary information to Purchaser in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Upon delivery of any Section 338 Form by Purchaser to Seller, Seller shall duly and promptly execute such form and deliver it to Purchaser. If Purchaser determines that any change is to be made in a Section 338 Form previously executed and delivered to Purchaser, then Purchaser may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller and Seller shall duly and promptly execute such form and deliver it to Purchaser. (c) With respect to each Section 338(h)(10) Election, as soon as practicable after The Purchase Price and the Closing Date, Purchaser shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP among the assets liabilities of the Company and/or its subsidiariesSubsidiaries (as applicable), plus other relevant items, will be allocated to the assets of PBMM and/or its Subsidiaries (as applicable applicable) for Income Tax purposes in a manner consistent with the fair market values as set forth on a schedule to be jointly prepared and agreed to by Purchaser and Seller (the “Election AllocationsAllocation Schedule”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 FormPurchaser, Purchaser shall prepare and submit to Seller such Section 338 Form setting forth, to the extent required therein, the Election Allocations. Seller and its affiliates will (i) each of their Affiliates shall file or cause to be filed all Tax Returns in a manner consistent with the Election Allocation and (ii) not take action inconsistent therewithSchedule. The Allocation Schedule shall be subsequently amended as required by applicable Law as the parties shall mutually agree. (d) For purposes of this Section 9.05:

Section 338 Elections; Election Allocations. (ai) Seller Sellers and Buyer will join with Purchaser in making make an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local local, or foreign law, or elections corresponding to Section 338(gLaw) of the Code and corresponding elections under state, local or foreign law) with respect to the Company and any of its subsidiaries as designated by Purchaser (each, a “Section 338(h)(10) Election”). Seller Sellers will timely pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (bii) At Within 30 days after the Closing, each Seller will deliver to Purchaser an Buyer a fully executed IRS Form 80238023 reflecting the Section 338(h)(10) Election, and any similar form provided for under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by SellerLaw. As reasonably requested from time to time by Purchaser Buyer (whether before, at or after the Closing), seller each Seller shall assist Buyer in, and shall provide the necessary information to Purchaser Buyer, in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign law other Law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Upon delivery of any Section 338 Form by Purchaser Buyer to any Seller, such Seller shall cause such Section 338 Form to be duly and promptly execute executed and promptly shall deliver such form and deliver it executed Section 338 Form to PurchaserBuyer. If Purchaser Buyer determines that any change is to be made in a Section 338 Form previously executed and delivered to PurchaserBuyer, then Purchaser Buyer may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller the appropriate Seller, and such Seller shall duly and promptly execute such form and deliver it to Purchaser. (c) With respect to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP among the assets of the Company and/or its subsidiaries, as applicable (the “Election Allocations”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 Form, Purchaser shall prepare and submit to Seller cause such Section 338 Form setting forth, to be duly and promptly executed and promptly shall deliver such executed Section 338 Form to Buyer. (iii) The portion of the Purchase Price allocated to the stock of each Election Corporation shall be allocated further in the manner described in this Section 6.3(d). “Election Corporation” means any Acquired Company to the extent required therein, the Election Allocations. Seller and its affiliates will (i) file or cause that Acquired Company is subject to be filed all Tax Returns in a manner consistent with the Election Allocation and (ii) not take action inconsistent therewith. (d) For purposes of this Section 9.05:338(h)(10)

Section 338 Elections; Election Allocations. (ai) With respect to the purchase of Shares of each Target Company, each Seller (A) will join with Purchaser in making deliver to Buyer on the Closing Date a fully executed IRS Form 8023 reflecting an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local local, or foreign lawLaw) prepared by Buyer, or elections corresponding and (B) agrees to Section 338(g) of the Code execute and deliver to Buyer on a prompt basis any additional applicable corresponding elections under state, local local, or foreign law) Law prepared by Buyer consistent with respect to the Company and any IRS Form 8023 executed as of its subsidiaries as designated by Purchaser the Closing Date (eachcollectively each election described in this Section 6.3(d)(i), a “Section 338(h)(10) Election”); provided that any such elections requiring the information subject to Sellers’ review as described in subparagraphs (ii) or (iii) below shall also be subject to the applicable provisions therein providing for Sellers’ review of such elections. Seller Sellers will timely pay any Taxes resulting from the making of the Section 338(h)(10) Elections. Elections (b) At a “Section 338 Tax”). Subject to the Closingprovisions of this Section 6.3(d), Seller will deliver to Purchaser an IRS Form 8023Sellers shall, and shall each cause its Affiliates to, provide to Buyer such cooperation and information, as and to the extent reasonably requested, in connection with the filing of any similar form provided under state, local or foreign law, reflecting each Section 338(h)(10) Election. (ii) In addition to the Section 338(h)(10) Elections, each fully executed by Seller. As as reasonably requested from time to time by Purchaser Buyer (whether before, at or after the Closing) and subject to the provisions of this Section 6.3(d), seller each Seller shall assist Buyer in, and shall provide the necessary information to Purchaser Buyer, in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign law other Law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Within one hundred eighty (180) days after the Closing, but at least thirty (30) days prior to the due date for its filing with the applicable Governmental Entity, Buyer shall prepare and deliver to each Seller the Section 338 Forms, prepared in accordance with Code Sections 338 and 1060, the applicable Treasury regulations thereunder, and any comparable provisions of state, local or foreign law (collectively referred to herein as the “Applicable 338 Law”). Upon delivery of any Section 338 Form by Purchaser Buyer to any Seller, such Seller shall have up to thirty (30) days to review and comment upon such Form, and upon its approval by Seller (which approval shall not be unreasonably conditioned, withheld or delayed), shall cause such Section 338 Form to be duly executed and promptly execute shall deliver such form and deliver it executed Section 338 Form to PurchaserBuyer. If Purchaser Buyer determines that any change is to be made in a Section 338 Form previously executed by a Seller and delivered to PurchaserBuyer pursuant to this Section 6.3(d)(ii), then Purchaser Buyer may prepare a new Section 338 Form that is consistent with Applicable 338 Law and deliver such new Section 338 Form to the appropriate Seller for its review and Seller shall duly and promptly execute such form and deliver it to Purchaser. (c) With respect to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP among the assets of the Company and/or its subsidiaries, as applicable (the “Election Allocations”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations thereunder. At least comment not later than thirty (30) days prior to the latest due date for of filing such Form with the filing of each Section 338 applicable Governmental Entity. Such Seller shall have up to thirty (30) days to review and comment upon such Form, Purchaser and upon such Seller’s approval (which approval shall prepare and submit to not be unreasonably conditioned, withheld or delayed), Seller shall cause such Section 338 Form setting forthto be duly executed and shall deliver such executed Section 338 Form to Buyer. Within 30 days after the Seller’s approval of all Section 338 Forms, each Seller will deliver to Buyer the information set forth in the approved Section 338 Forms, and any similar form provided for under state, local or foreign Law. The Buyer and Sellers will not take any inconsistent position on their respective Tax Returns from those reported on the Section 338(h)(10) Elections and the approved Section 338 Forms. (iii) The portion of the Purchase Price allocated to the stock of each Election Corporation shall be allocated further in the manner described in this Section 6.3(d). “Election Corporation” means any Target Company to the extent required therein, the Election Allocations. Seller and its affiliates will (i) file or cause that Target Company is subject to be filed all Tax Returns in a manner consistent with the Election Allocation and (ii) not take action inconsistent therewith. (d) For purposes of this Section 9.05:338(h)(10)

Section 338 Elections; Election Allocations. (a) Seller will join with Purchaser in making an election under Section 338(h)(10) of the Code (and at Purchaser’s request, any corresponding elections under state, local or foreign law, or elections corresponding to Section 338(g) of the Code and corresponding elections under state, local or foreign law) with respect to the Company and any of its subsidiaries as designated by Purchaser (each, a “Section 338(h)(10) Election). Seller will pay any Taxes resulting from the making of the Section 338(h)(10) Elections. (b) At the Closing, Seller will deliver to Purchaser an IRS Form 8023, and any similar form provided under state, local or foreign law, reflecting each Section 338(h)(10) Election, each fully executed by Seller. As reasonably requested from time to time by Purchaser (whether before, at or after the Closing), seller shall assist and provide the necessary information to Purchaser in connection with the preparation of any form or document required to effect a valid and timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state, local or foreign law and any schedules or attachments thereto (collectively, Section 338 Forms”). Upon delivery of any Section 338 Form by Purchaser to Seller, Seller shall duly and promptly execute such form and deliver it to Purchaser. If Purchaser determines that any change is to be made in a Section 338 Form previously executed and delivered to Purchaser, then Purchaser may prepare a new Section 338 Form and deliver such new Section 338 Form to Seller and Seller shall duly and promptly execute such form and deliver it to Purchaser. (c) With respect to each Section 338(h)(10) Election, as soon as practicable after the Closing Date, Purchaser shall determine, reasonably and in good faith, and after consultation with Seller (i) ADSP and (ii) the allocation of ADSP among the assets of the Company and/or its subsidiaries, as applicable (the “Election Allocations”). The Election Allocations shall be determined in accordance with Section 338 of the Code and the applicable Treasury regulations thereunder. At least thirty (30) days prior to the latest date for the filing of each Section 338 Form, Purchaser shall prepare and submit to Seller such Section 338 Form setting forth, to the extent required therein, the Election Allocations. Seller and its affiliates will will (i) file or cause to be filed all Tax Returns in a manner consistent with the Election Allocation and (ii) not take action inconsistent therewith. (d) For purposes of this Section 9.05: