Common use of Section 338(h)(10) Election Clause in Contracts

Section 338(h)(10) Election. (a) The Sellers and Investor shall jointly make a timely election pursuant to Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the United States Treasury Regulations and any comparable election under applicable state or local Law (collectively, the “Section 338(h)(10) Election”) with respect to the purchase by Investor of the Merger Shares. In addition, the Sellers, Investor and the Company shall, as promptly as practicable following the Closing Date, cooperate with each other to take all actions necessary and appropriate (including filing Form 8883, Asset Allocation Statement Under Section 338, and such additional forms, returns, elections, schedules and other documents as may be required by applicable state or local Law) to effect and preserve a timely Section 338(h)(10) Election in accordance with any comparable provisions of applicable Law, and the parties responsible for filing any such Section 338(h)(10) Election under applicable Law shall promptly file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority and provide written evidence of such filing to the other parties. The Sellers and Investor shall report the purchase by Investor of the Merger Shares consistent with the Section 338(h)(10) Election and the allocation as set forth on Schedule 2.04(a) and no party shall take (and prior to the Closing the Sellers shall not permit the Company to take, and after the Closing the Company shall not take) any position contrary thereto in any Tax Return, any proceeding before any Taxing Authority or otherwise. In the event that any Section 338(h)(10) Election is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party concerning such dispute.

Section 338(h)(10) Election. (a) The Sellers Unless otherwise mutually agreed by the Shareholders and Investor Purchaser, the Company, the Shareholders and Purchaser shall jointly make a timely election pursuant to Code Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the United States Treasury Regulations Election (and any comparable election corresponding elections under applicable state or local Law tax law) (collectively, the “Section 338(h)(10) Election”) ” with respect regard to the Purchaser’s purchase by Investor of the Merger SharesStock. In addition, the Sellers, Investor and the Company shall, as promptly as practicable following the Closing Date, The Shareholders shall cooperate with each other to take all actions necessary and appropriate (including filing Form 8883, Asset Allocation Statement Under Section 338, and Purchaser in making such additional forms, returns, elections, schedules including executing all necessary IRS Forms 8023 (and other documents as may be required by any applicable state or local Lawforms) and otherwise taking such other actions that are required under the Code or the Treasury Regulations to effect and preserve a timely Section 338(h)(10) Election in accordance with any comparable provisions of applicable Law, and the parties responsible for filing any such Section 338(h)(10) Election under applicable Law shall promptly file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority and provide written evidence of such filing to the other parties. The Sellers and Investor shall report the purchase by Investor of the Merger Shares consistent with make the Section 338(h)(10) Election (the “Section 338 Forms”). The Purchaser and the allocation as set forth on Schedule 2.04(a) and no party shall take (and prior Shareholders agree that the ADSP will be allocated to the Closing the Sellers shall not permit assets of the Company for all purposes (including Tax and financial accounting) as shown on Exhibit F attached to takethis Agreement (the “Allocation”). The Allocation shall be the allocation used by the Company, the Shareholders, and after the Closing the Company shall not take) any position contrary thereto Purchaser in any and all Tax Return, Returns and shall be the allocation used in each IRS Form 8883 and any proceeding before any Taxing Authority or otherwise. In supplements thereto for each of the event that any “old target” and the “new target” as such terms are used in Code Section 338(h)(10) Election is disputed by any Taxing Authorityand the applicable Treasury Regulations. The Company, the Shareholders and Purchaser shall make all Tax reports, Tax Returns and Tax refund claims and other statements, including IRS Form 8883 or any equivalent statements, in a manner consistent with such Allocation and shall not make inconsistent written statements on any Tax Returns or during the course of any IRS or other Tax audit, except to the extent required by applicable Legal Requirements. Each party receiving notice agrees to notify the other if the IRS or any other Tax authority proposes a reallocation of such dispute shall promptly notify and consult with amounts. Each Shareholder will report any income resulting from the other party concerning such disputeSection 338(h)(10) Election, or cash to accrual change in accounting method, as the case may be.

Section 338(h)(10) Election. (a) The Sellers Buyer, the Seller and Investor Robertex shall jointly make a timely and effective election pursuant to provided for by Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the United States Treasury Regulations and any comparable election under applicable state or local Law (collectively, the “Section 338(h)(10) Election”) with respect to the purchase by Investor and sale of the Merger SharesStock (the “Election”) and the signatures of the Parties hereto shall be deemed the necessary consent to such Election. In additionThe Buyer, the Sellers, Investor Seller and the Company shall, as promptly as practicable following the Closing Date, Robertex shall cooperate with each other to take all actions necessary and appropriate (appropriate, including filing Form 8883, Asset Allocation Statement Under Section 338, and such additional forms, returns, elections, schedules and other documents as may be required by applicable state or local Law) to effect and preserve a timely Section 338(h)(10) the Election in accordance with any comparable the provisions of Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the Treasury Regulations promulgated thereunder or any successor provisions. Specifically, the Seller, Robertex and the Buyer shall, within five (5) days prior to the date such forms are required to be filed under applicable Lawlaw, exchange completed and executed copies of the Internal Revenue Service Forms 8023 and 8883, and the parties responsible for filing required schedules thereto. If changes are required in any of these forms as a result of information which is first available after the date on which any such Section 338(h)(10) Election under applicable Law shall promptly file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority form is completed and provide written evidence of such filing executed pursuant to the other partiespreceding sentence, the parties will act in good faith to agree on such changes. The Sellers Seller, Robertex and Investor the Buyer shall report the purchase by Investor and sale of the Merger Shares Stock consistent with the Section 338(h)(10) Election and the allocation as set forth on Schedule 2.04(a) and no party shall take (and prior to the Closing the Sellers shall not permit the Company to take, and after the Closing the Company shall not take) any no position contrary thereto inconsistent therewith in any Tax Return, any proceeding before any Taxing Authority Tax authority or otherwise. In the event that any Section 338(h)(10) Election is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party concerning such dispute.

Section 338(h)(10) Election. The Buyer and the Sellers shall (ai) The Sellers and Investor shall jointly make a timely join in making an election pursuant to under Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the United States Treasury Regulations promulgated thereunder (the “Treasury Regulations”) and any comparable election available under applicable state or local Law Tax Legal Requirement with respect to the acquisition of the Stock pursuant to this Agreement (collectively, the “Section 338(h)(10) Election”), (ii) with respect provide to the purchase other party any information reasonably requested in reasonable detail by Investor of such other party to permit the Merger Shares. In additionSection 338(h)(10) Election to be made, the Sellers, Investor and the Company shall, (iii) as promptly as practicable following the Closing Date, cooperate with each other to take all actions necessary reasonably requested in reasonable detail by the other party to timely effect and appropriate preserve the Section 338(h)(10) Election (including filing Form 8883, Asset Allocation Statement Under Section 338, and such additional forms, returns, elections, schedules and other documents as may be required reasonably requested in reasonable detail by applicable state or local Law) the other party to effect and preserve a timely the Section 338(h)(10) Election in accordance with the provisions of the Treasury Regulations (or any comparable provisions of applicable Law, and the parties responsible for filing any such state or local Tax Legal Requirement)). Notwithstanding anything in this Section 338(h)(109.2(g) Election under applicable Law shall promptly file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority and provide written evidence of such filing to the other parties. The Sellers contrary, the Company shall provide the Buyer at Closing with a properly signed copy of Department of Treasury Internal Revenue Service Form 8023 and Investor shall report the purchase by Investor of the Merger Shares consistent with any comparable form under foreign, state or local Legal Requirement (including, in each case, any successor form) effecting the Section 338(h)(10) Election and the allocation as set forth on Schedule 2.04(a) and no party shall take (and prior to the Closing the Sellers shall not permit the Company to take, and after the Closing the Company shall not take) any position contrary thereto in any Tax Return, any proceeding before any Taxing Authority or otherwise. In the event that any Section 338(h)(10) Election is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party concerning such dispute.)

Section 338(h)(10) Election. The Parties hereby agree to join in making (aor causing there to be made) The Sellers and Investor shall jointly make a timely an election pursuant to under Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the United States Treasury Regulations (and any comparable election such similar elections as may be available under applicable state or local Law (collectively, the “Section 338(h)(10) Election”Laws) with respect to the purchase by Investor Buyer of all of the Merger Shares. In addition, Company Securities pursuant to this Agreement (such election under Section 338(h)(10) of the Sellers, Investor Code (and the Company shall, as promptly as practicable following the Closing Date, cooperate with each other to take all actions necessary and appropriate (including filing Form 8883, Asset Allocation Statement Under Section 338, and any such additional forms, returns, elections, schedules and other documents similar elections as may be required by available under applicable state or local Lawlaws) the “338(h)(10) Election”). Each Party agrees to cooperate with the other in the preparation and completion of IRS Form 8023, in the filing of such completed form before the filing due date, and in the timely completion and filing of all other forms required to effect the 338(h)(10) Election and preserve a timely Section to take all other steps necessary in order to effectuate the 338(h)(10) Election in accordance with applicable laws. Unless otherwise required by a final determination (within the meaning of Section 1313(a) of the Code or any comparable provisions analogous or similar provision of applicable state or local Law), (i) each of the Parties shall, and the parties responsible for filing any such Section 338(h)(10) Election under applicable Law shall promptly cause each of their respective Affiliates to, report, act and file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority and provide written evidence of such filing to the other parties. The Sellers and Investor shall report the purchase by Investor of the Merger Shares all Tax Returns in a manner consistent with the Section 338(h)(10) Election Election, and (ii) no Party shall take any position that is inconsistent with the 338(h)(10) Election. Within 90 days after the determination of the Final Purchase Price pursuant to Section 2.4, Buyer shall provide the Seller with a proposed allocation of the “aggregate deemed sale price” (as defined in Treasury Regulations Section 1.338-4) among the tangible and intangible assets of the Company in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder and the allocation as methodology set forth on Schedule 2.04(aExhibit 6.8 attached hereto (the “Allocation Methodology”) for Seller’s review and no party comment (the “Allocation”). If the Seller does not provide any comments to Buyer in writing within 30 days following delivery by Buyer of the proposed Allocation, then the Allocation proposed by Buyer shall be deemed to be final and binding, absent manifest error. If, however, the Seller submits comments to Buyer within such 30-day period, Buyer and Seller shall negotiate in good faith to resolve any differences within 20 days (if any such allocation is finally agreed, the “Agreed Allocation”). If Seller and Buyer are unable to reach a resolution within such 20-day period, then each such Party shall be permitted to make its own allocations, and shall not be responsible for, or have any liability with respect to, the allocation used by the other Party. If Seller and Buyer are unable to reach a resolution within such 20-day period, the matter shall be referred to the Accounting Firm for resolution in accordance with the Allocation Methodology, with such resolution to be considered an Agreed Allocation for all purposes hereunder. Upon any subsequent adjustments to the sum of the Final Purchase Price and any other items that are treated as additional consideration for Tax purposes, the parties shall prepare an updated Allocation in a manner consistent with the manner in which the Agreed Allocation was prepared. The Parties shall prepare all Tax Returns in a manner consistent with the Agreed Allocation, and shall take no position inconsistent with such Agreed Allocation (and prior to the Closing the Sellers shall not permit the Company to takeas updated, and after the Closing the Company shall not takeif applicable) any position contrary thereto in any Tax Return, any proceeding before any Taxing Authority taxing authority unless otherwise required by a final determination (within the meaning of Section 1313(a) of the Code or otherwise. In the event that any Section 338(h)(10) Election is disputed by any Taxing Authority, the party receiving notice analogous or similar provision of such dispute shall promptly notify and consult with the other party concerning such disputestate or local Law).

Section 338(h)(10) Election. (a) The Sellers Buyer and Investor Seller shall jointly timely make a timely joint election pursuant to Section 338(h)(10) of the Code Code, and Treasury Regulation Section 1.338(h)(10)-1 of the United States Treasury Regulations 1.338(h)(10)-1, and any comparable election under applicable state or local Law Tax law (collectively, the “Section 338(h)(10) ElectionElections”) with respect to the purchase by Investor deemed sale of the Merger SharesShares pursuant to this Agreement. As promptly as reasonably practicable after the Effective Time and in all events within 150 days after the Closing Date, with respect to the federal Election, Buyer and Seller shall mutually prepare a Form 8023 (with all attachments), and Buyer and Seller shall execute such Form 8023 which shall be given to Buyer for filing on behalf of itself and the Seller. In addition, Buyer and Seller shall duly and timely file their respective Forms 8883 in Stock Purchase Execution Version connection with the Sellers, Investor sale of the Shares pursuant to this Agreement (including for the year of the sale) and shall promptly furnish a copy of each such Form 8883 to the Company other party promptly after filing. Buyer and Seller shall, as promptly as practicable following the Closing Date, cooperate with each other to take all actions necessary and appropriate (including filing Form 8883, Asset Allocation Statement Under Section 338, and such additional forms, returns, elections, schedules and other documents as may be required by applicable state or local Lawrequired) to effect and preserve a timely Elections in accordance with the provisions of Section 338(h)(10) Election in accordance with of the Code and Treasury Regulations Section 1.338(h)(10)-1 and any comparable provisions provision of applicable Lawstate or local law. Fiserv, Buyer and the parties responsible for filing any such Section 338(h)(10) Election under applicable Law shall promptly file or cause to be filed such Section 338(h)(10) Election with the appropriate Taxing Authority and provide written evidence of such filing to the other parties. The Sellers and Investor Seller shall report the purchase by Investor of the Merger Shares sale consistent with the Section 338(h)(10) Election Elections and the allocation as set forth on Schedule 2.04(a) this Agreement, and no party none of Fiserv, Buyer or Seller shall take (and prior to the Closing the Sellers shall not permit the Company to take, and after the Closing the Company shall not take) any position contrary thereto inconsistent therewith in any Tax ReturnReturn (as hereinafter defined), any proceeding before any Taxing Authority authority or otherwise. In the event that any Section 338(h)(10) Election is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party concerning such dispute.