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

Section 338(h)(10) Election. (a) At Buyer’s option, exercised at any time on or prior to September 30, 2018, Seller shall join with Buyer in making a timely election under Section 338(h)(10) of the Code (and any corresponding election under state, local, and foreign Law) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a “Section 338(h)(10) Election”). Seller shall pay any Tax attributable to the making of the Section 338(h)(10) Election and Seller shall indemnify Buyer and the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxes. (b) If a Section 338(h)(10) Election is made, Seller and Buyer shall (and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 and any similar forms under applicable state and local income Tax Laws (collectively, the “Section 338(h)(10) Forms”) in a manner consistent with the Total Purchase Price Allocation Schedule and, if any, the Allocation. Seller and Buyer shall (or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectively. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a1) At the request of Buyer’s option, exercised at Seller, Parent and Buyer shall jointly make, and shall take any time on or prior and all actions necessary to September 30effect, 2018, Seller shall join with Buyer in making a timely an election under Section 338(h)(10) of the Code (and any corresponding election under state, local, and foreign Law) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a “Section 338(h)(10) Election”). Seller shall pay any Tax attributable If Buyer requests a Section 338(h)(10) Election, Seller, Parent and Buyer shall, within ten (10) days prior to the making date such forms are required to be filed under applicable Law, exchange completed and executed copies of IRS Forms 8023 and 8883, required schedules thereto, and any similar state, local or foreign forms. The completed and executed IRS Form 8883 shall reflect the Allocation Schedule agreed to by Seller and Buyer pursuant to Section 10.10(b). If a Section 338(h)(10) Election is made, Seller, Parent and Buyer shall report the purchase and sale of the Shares consistent with the treatment of the purchase of the Shares as a “qualified stock purchase” and consistent with the Section 338(h)(10) Election and Seller shall indemnify Buyer and the Acquired Companies against take no position inconsistent therewith in any adverse consequences arising out of Tax Return, any failure to pay proceeding before any such TaxesTaxing Authority or otherwise. (b2) If a Section 338(h)(10) Election is made, Seller Seller, Parent and Buyer shall (agree that the Purchase Price and shall cause their relevant Affiliates to) cooperate in all liabilities of the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 Company and any similar forms under applicable state and local income Tax Laws other relevant items (collectively, the “Section 338(h)(10) FormsConsideration”) in a manner consistent with shall be allocated among the Total Purchase Price assets of the Company for all purposes (including Tax and financial reporting) as shown on the allocation schedule (the “Allocation Schedule”). A draft of the Allocation Schedule and, if any, the Allocation. shall be prepared by Buyer and delivered to Seller and Buyer shall (or shall cause their relevant Affiliates to) timely file such with Buyer’s request to make a Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectively. (c) [Intentionally omitted])

Section 338(h)(10) Election. (a) At the Buyer’s option, exercised at any time on or prior to September 30, 2018, the Seller and the Buyer shall join with Buyer in making a timely an election under Code Section 338(h)(10) of the Code (and any corresponding election elections under state, local, and or foreign Lawtax law) (collectively a “Section 338(h)(10) Election“) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a “Section 338(h)(10) Election”)Shares. The Seller shall be liable for and pay any Tax attributable to the making of the Section 338(h)(10) Election and Seller shall will indemnify the Buyer and the Acquired Companies Company against any adverse consequences arising out of any failure to pay such Tax. Notwithstanding the preceding sentence, (i) the Buyer shall be liable for and pay any state or local transfer, sales and use, notarial or similar fees or Taxes arising as a result of the sale of the Shares and a Section 338(h)(10) Election and the transaction contemplated by this Agreement, (ii) the Buyer shall be liable for and pay any income, franchise or similar Taxes imposed by any state or local taxing authority as a result of any Code Section 338(g) election (or any comparable election under state law) if such Taxesstate or local taxing authority does not allow or respect a Section 338(h)(10) Election (or any comparable or resulting election under state law) with respect to the purchase and sale of the Shares, and (iii) the Buyer and the Company shall indemnify the Seller against any adverse consequences arising out of any failure to pay the Taxes described in (i) and (ii). (b) If The parties agree that the Purchase Price and the liabilities of the Company (plus other relevant items) shall be allocated to the assets of the Company for all purposes (including Tax and financial accounting purposes) as shown on the allocation schedule attached hereto as Schedule 8.3. The Buyer, the Company and the Seller shall file all Returns (including amended Returns and claims for refund) and information reports in a manner consistent with such allocation. (c) At the Closing, if requested by the Buyer, the Seller will deliver to the Buyer a fully executed IRS Form 8023 reflecting the Section 338(h)(10) Election is madeElection, and any similar form provided for under state, local or foreign Law. As requested from time to time by the Buyer (whether before, at or after the Closing), the Seller and shall assist the Buyer shall (in, and shall cause their relevant Affiliates to) cooperate provide the necessary information to the Buyer, in connection with the preparation of all forms, attachments any form or document required to effect a valid and schedules necessary to effectuate the timely Section 338(h)(10) Election, including IRS Forms 8023 and Form 8883 (Asset Allocation Statement Under Section 338), and any similar forms form under applicable state state, local or other Law and local income Tax Laws any schedules or attachments thereto, each prepared consistently with Schedule 8.3 hereto (collectively, the “Section 338(h)(10) 338 Forms”) “). Upon delivery of any Section 338 Form by the Buyer to the Seller, the Seller shall cause such Section 338 Form to be duly and promptly executed and shall deliver such executed Section 338 Form to the Buyer. If the Buyer determines that any change is to be made in a manner consistent with Section 338 Form previously executed and delivered to the Total Purchase Price Allocation Schedule andBuyer, if any, then the Allocation. Buyer may prepare a new Section 338 Form and deliver such new Section 338 Form to the Seller and Buyer shall (or the Seller shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller 338 Form to be fully and Buyer agrees that it shall not, promptly executed and shall not permit any of its Affiliates to, revoke deliver such executed Section 338 Form to the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectivelyBuyer. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a) At Buyer’s option, exercised at any time on or prior to September 30, 2018, Buyer and each Seller shall (i) join with Buyer in making a timely an election under Section 338(h)(10) of the Code (and any election corresponding election to Section 338(h)(10) of the Code under foreign, state, local, and foreign Lawor local laws) with respect to the purchase and sale of the Shares of the each Company hereunder (collectively, a the “Section 338(h)(10) Election”), (ii) provide to the other party the necessary information to permit the Section 338(h)(10) Election to be made; and (iii) take all actions necessary and appropriate (including filing IRS Form 8023 and any necessary forms, returns, elections, schedules and other documents) as may be required to effect and preserve timely the Section 338(h)(10) Election in accordance with the provisions of Treasury Regulations Section 1.338(h)(10)-1 (or any provisions comparable to Section 338(h)(10) of state or local Tax Law). Seller Such applicable forms shall pay any be duly executed by Sellers and an authorized person for Buyer at Closing. (b) Any Tax imposed on a Company attributable to the making of the Section 338(h)(10) Election and Seller including without limitation (i) any Tax imposed under Code Section 1374, (ii) any Tax imposed under Treasury Regulation Section 1.338(h)(10)-1(d)(2), or (iii) any state, local, or non-U.S. Tax imposed on any Company’s gain shall indemnify be the sole responsibility of Buyer and the Acquired Companies against any adverse consequences arising out of any failure to pay any Companies; and Sellers shall have no liability for such Taxes. (bc) Sellers shall include any income, gain, loss, deduction or other Tax item resulting from the Section 338(h)(10) Election on their Tax Returns to the extent required by applicable Law. Buyer shall pay to Sellers’ Representative within seven days after Sellers and Buyer agree to the Allocation an amount of additional consideration (as determined in good faith by both Sellers and Buyer) resulting from the Section 338(h)(10) Election in an amount equal to: (i) any additional Taxes paid by Sellers as a result of any portion of the gain recognized by a Company upon the Section 338(h)(10) Election being characterized as ordinary income rather than capital gain (i.e., Buyer shall be responsible to pay Sellers for the excess of the amount that is taxed at ordinary income rates over the amount that would have been paid if such amount had been taxed at capital gains rates) and (ii) to the extent not covered in (i), any state or local Taxes paid by Sellers as a result of the Section 338(h)(10) Election if such Taxes would not have been required to be paid but for the Section 338(h)(10) Election (collectively (i) and (ii) being the “Catch-Up Payment”) plus (x) an additional amount (the “Gross-Up Payment”) such that the net amount to Sellers after the incremental federal, state and local Tax liability incurred by the Sellers due solely to the Catch-Up Payment and the Gross-Up Payment equals the Catch-Up Payment. If a Buyer and Sellers are unable to reach an agreement with respect to the matters set forth in this Section 7.05(c), the item(s) in question shall be resolved by the Independent Accountant, with such resolution to be determined no later than 20 days prior to the regular due date for filing of Sellers’ income tax return for the year in which the Section 338(h)(10) Election is made, Seller made by the Parties. The fees and expenses of the Independent Accountant shall be borne equally by Sellers and Buyer. (d) Buyer shall (and shall cause their relevant Affiliates to) cooperate in determine the preparation amount of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 and any similar forms under applicable state and local income Tax Laws (collectively, the “aggregate deemed sales price” (as defined in Treasury Regulations Section 338(h)(101.338-4, but excluding selling costs) Formsand prepare, and provide to Sellers’ Representative within 90 days after the Closing Date, an allocation for tax purposes of such amount among the assets of each Company (the “Allocation”) in a manner consistent with Section 338 of the Total Purchase Price Code and the Treasury Regulations thereunder. The Allocation Schedule and, if anyshall be binding upon Buyer, the Companies and Sellers unless Sellers shall, within 45 days of delivery of the Allocation to Sellers’ Representative, provide to Buyer written notice of its objection to the Allocation and the reasons therefor, in which event the parties hereto shall endeavor in good faith to agree upon an Allocation. Seller If the parties hereto cannot resolve such objection, the item in question shall be resolved by the Independent Accountant. The fees and Buyer expenses of the Independent Accountant shall be borne equally by Sellers and Buyer. The parties hereto shall, except as otherwise required by Law, (or shall cause their relevant Affiliates toi) timely file such all Tax Returns that are affected by a Section 338(h)(10) Forms Election in a manner consistent with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall notAllocation, as finally agreed upon by the parties hereto, and (ii) not take any position before any Governmental Entity that is inconsistent with such Allocation. (e) Neither Sellers nor Buyer shall not permit take, or cause to be taken, any of its Affiliates toaction or inaction, revoke or do, or cause to be done, any things that would prevent the transactions contemplated by this Agreement from qualifying for a Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectivelyElection. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a) At Neither Buyer nor any of its Affiliates shall make an election under Section 338(g) of the Code (or any similar provision of the Law of any state or other taxing jurisdiction) with respect to any of the Acquired Companies in connection with the transactions contemplated by this Agreement without the prior written consent of Parent. (b) With respect to the sale and acquisition of each of the Companies, Krone Optical Systems, Inc, Krone Holding Inc, Krone USA Incorporated, and Krone Incorporated (collectively, the “Eligible Companies”), Parent and Buyer’s option, exercised at any time on or prior to September 30and their respective Affiliates, 2018, Seller shall hereby covenant and agree with each other that they will join with Buyer in making a timely an election under pursuant to Section 338(h)(10) of the Code (and any corresponding election under state, localCode, and foreign Law) with respect to the purchase and sale of the Shares of the Company hereunder Treasury Regulations promulgated thereunder (collectively, a “Section 338(h)(10) Election”). Seller shall pay any Tax attributable ) and (i) at least 10 days prior to the making Closing Date, Parent and Buyer shall agree based on information then available on the form and content of the IRS Forms 8023 (the “Forms 8023”) on which the Section 338(h)(10) Election and Seller Elections shall indemnify be made; (ii) at or prior to the Closing, Buyer and shall deliver to Parent properly executed Forms 8023 containing information then available, which Parent shall file with the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxes. Internal Revenue Service not later than five days following the Closing Date; (biii) If a Section 338(h)(10) Election is made, Seller and Buyer shall jointly and timely make any elections under state or local tax law comparable to the Section 338(h)(10) Elections (each such election, a “Comparable Election”, and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the collectively with any Section 338(h)(10) Election, an “Election”) with respect to the Eligible Companies; (iv) Parent and Buyer shall, as promptly as practicable following the Closing Date, cooperate with each other to take all other actions necessary and appropriate (including IRS filing such forms, returns, elections, schedules and other documents as may be required) otherwise to effect, perfect and preserve timely Elections in accordance with the provisions of Treasury Regulation Section 1.338(h)(10)-l (or any comparable provisions of state or local tax law) or any successor provisions; and (v) Parent and Buyer, and their respective Affiliates, shall report the sale and acquisition, respectively, of the stock of the Eligible Companies pursuant to this Agreement consistent with the Elections and shall take no position to the contrary thereto in any Return, or in any proceeding before any taxing authority or otherwise. (c) To the extent permissible or required by law, Parent and Buyer, and their respective Affiliates, shall cooperate in the preparation and timely filing of (i) any corrections, amendments or supplements to the Forms 8023 and 8883 and (ii) any similar state or local forms under applicable state and local income Tax Laws (collectivelyor reports, the “Section 338(h)(10) Forms”) in a manner consistent each case, that are necessary or appropriate for purposes of complying with the Total Purchase Price Allocation Schedule andrequirements for making any Election. To the extent necessary for the valid filing of any such corrections, if anyamendments, supplements, forms or reports, Parent and Buyer, and their respective Affiliates, shall cooperate in the Allocation. Seller and timely execution thereof. (d) None of Parent, Seller, or Buyer shall (shall, or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its their Affiliates to, take any action to modify any of the forms or reports (including any corrections, amendments or supplements thereto) that are required for the making of the Elections after their execution or to modify or revoke any of the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms 8023 without the prior written consent of Buyer and SellerParent, respectivelySeller or Buyer, as the case may be. (ce) [Intentionally omitted]Buyer will initially prepare a complete set of IRS Forms 8883 (and any comparable forms required to be filed under state, local or foreign Tax Law) and any additional data or materials required to be attached to Form 8883 pursuant to the Treasury Regulations promulgated under Section 338 of the Code (“Asset Allocation Statements”). Buyer will deliver the Asset Allocation Statements to Parent for review no later than 60 days prior to the date on which such forms are required to be filed. In the event Parent reasonably objects to the manner in which the Asset Allocation Statements have been prepared, Parent will notify Buyer within 15 days of receipt of the Asset Allocation Statements of such objection, and the parties will endeavor within the next 15 days to resolve such dispute in good faith. If the parties are unable to resolve such dispute within such 15-day period, Parent and Buyer will submit such dispute to an independent accounting firm of recognized national standing (the “Allocation Arbiter”) selected jointly by Parent and Buyer, which firm will not be the regular accounting firm of Parent or Buyer, and which firm shall resolve such dispute in accordance with the procedures set forth in Section 1.4(b). The Allocation Arbiter’s Asset Allocation Statements will be conclusive and binding upon the parties.

Section 338(h)(10) Election. (a) At Buyer’s option, exercised at any time on or prior to September 30, 2018, Seller and Buyer shall join with Buyer in making a timely an election under Section 338(h)(10) of the Code (and any corresponding election elections under state, local, state and foreign local Tax Law) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a the “Section 338(h)(10) ElectionElections”) and Buyer shall make an election under Section 338(g) of the Code (and any corresponding elections under state and local Tax Law) with respect to the indirect purchase of the non-U.S. Subsidiaries (the “Section 338(g) Elections,” and, together with the “Section 338(h)(10) Elections,” the “Section 338 Elections”). Seller The Parties shall pay any Tax attributable reasonably cooperate with and provide the necessary information to the making of other Party to permit the Section 338(h)(10) Election 338 Elections to be made and Seller shall indemnify Buyer take all actions necessary and the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxes. appropriate (b) If a Section 338(h)(10) Election is made, Seller and Buyer shall (and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including filing IRS Forms 8023 and 8883 together with all required attachments and any similar forms under applicable state necessary forms, returns, elections, schedules and local income Tax Laws other documents) as may be required to effect and preserve timely the Section 338 Elections. The Parties agree that the “aggregate deemed sales price” (collectivelyas defined in Treasury Regulations section 1.338-4) and the “adjusted gross-up basis” (as defined in Treasury Regulations section 1.338-5) shall be allocated among the assets of the Company, and further among its non-U.S. Subsidiaries, in accordance with Treasury Regulations sections 1.338-6 and 1.338-7 and, with respect to the asset-level allocation, the principles set forth on Schedule 10.1(f) attached hereto (the “Allocation”). Within ninety (90) days after the final determination of the purchase price pursuant to Section 338(h)(102.2, Buyer shall prepare a schedule setting forth the Allocation (the “Allocation Schedule”), which shall conform to Schedule 10.1(f). Seller shall be permitted to review and approve the Allocation Schedule. Seller shall notify Buyer of any comments to the Allocation Schedule within thirty (30) Forms”days after Seller’s receipt of the Allocation Schedule. Buyer and Seller shall attempt in good faith to resolve any differences with respect to the Allocation Schedule during the thirty (30) days following the delivery of Seller’s comments. If Buyer and Seller are unable to resolve such differences within such thirty (30) day period, then any remaining disputed matters shall be submitted to the Independent Accountant for resolution in a manner consistent accordance with the Total Purchase Price procedural principles of Section 2.2(b); provided that Buyer and Seller agree that for purposes of the Allocation Schedule and, if anySchedule, the Allocationprinciples set forth in Schedule 10.1(f) shall apply, and the Independent Accountant shall be required to follow the principles set forth therein in resolving any such dispute. Except as required by a “determination” within the meaning of Section 1313(a) of the Code, Seller and Buyer shall (agree that they will not take, or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with or permit to be taken, any position on any Tax Return that would be inconsistent with, prejudice or otherwise adversely affect the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectivelyAllocation Schedule. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a) At Buyer’s option, exercised at any time on or prior to September 30, 2018, Seller Buyer and Sellers shall join with Buyer in making a timely jointly make an election under Section 338(h)(10) of the Code (and any corresponding comparable election under state, local, and foreign Lawstate or local law) with respect to the purchase acquisition of Shares. Buyer and sale Sellers will cooperate fully with each other in the making of such election including the filing of all required IRS forms and related forms under state and local law. Buyer and Sellers will endeavor in good faith to agree on an allocation of the Shares Purchase Price for Tax purposes among the assets of the Company hereunder for purposes of Section 338 of the Code using the methodology set forth in Schedule 6.10, and Buyer and Sellers will each file their Tax returns in a manner consistent with such allocation. In the event such allocation shall not be agreed upon such allocation shall be determined by the Neutral Accountant whose decision shall be final and binding on the parties without further recourse. (collectively, a “Section 338(h)(10b) Election”). Seller shall Sellers will pay any Tax all Taxes (i) attributable to the making of the Section 338(h)(10) Election election, including any federal, state, local or foreign Tax attributable to an election under federal, state, local or foreign law similar to the election available under Section 338(h)(10) of the Code (including but not limited to any Tax imposed under Section 1374 of the Code), or (ii) attributable to the sale of the Shares (including transfer Taxes). Sellers shall jointly and Seller shall severally indemnify Buyer defend and hold harmless Buyer, the Acquired Companies Company and each of their successors, assigns and Affiliates from and against any adverse consequences liability arising out of any failure to pay any such TaxesTax. (bc) If a Sellers will cause each partnership or limited liability company that is at least fifty percent (50%) owned, either directly or indirectly, by the Company to make an election under Section 338(h)(10754 of the Code and Treasury Regulations Section 1.754-1(b) Election is madeto adjust the basis of the partnership or limited liability company property in the manner provided in Sections 734(b) and 743(b) of the Code and in accordance with Schedule 6.10, Seller and to be effective for the Tax year that includes the Closing Date. (d) Buyer shall (and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including prepare IRS Forms Form 8023 and 8883 and any similar forms under required by applicable state state, local and local income foreign Tax Laws laws or regulations (collectively, the “Section 338(h)(10) 338 Election Forms”) ). Sellers shall cooperate with Buyer in a manner consistent with the Total Purchase Price Allocation Schedule and, if any, the Allocation. Seller and Buyer shall (or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Elections following the filing preparation of the Section 338(h)(10) 338 election Forms without and shall deliver duly completed, executed copies of such Section 338 Election Forms on the prior written consent of Buyer and Seller, respectivelyClosing Date. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a) At Buyer’s optionBuyer may elect to cause Seller, exercised at any time on or prior relevant Selling Subsidiary and Buyer to September 30, 2018, Seller shall join with Buyer in making a timely jointly make the election under provided by Section 338(h)(10) of the Code (for the acquisition of the stock of the Sold Subsidiaries in accordance with Treas. Reg. § 1.338(h)(10)-l(d) on IRS Form 8023, and to make a joint election under any corresponding election under state, local, and local or foreign Lawtax law (the “Election”) with respect to the purchase and sale of the Shares stock of the Company hereunder Sold Subsidiaries by notifying Seller in writing (collectively, a the “Section 338(h)(10338 Election Notice”) Electionat any time on or before the date that is 60 days prior to the deadline for filing the Election (the “Election Deadline”). Seller and Buyer shall pay any Tax attributable provide to the making other all necessary information to permit the Election to be made. Seller, any relevant Selling Subsidiary and Buyer shall, as promptly as practicable following the receipt of a 338 Election Notice, take all actions necessary and appropriate (including filing IRS From 8023 and other such forms, returns, elections, schedules, attachments and other documents as may be required (the Section 338(h)(10“Forms”)) Election to effect and Seller shall indemnify Buyer and the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxespreserve a timely Election. (b) If a Section 338(h)(10) Election is madeBuyer, Seller and any relevant Selling Subsidiary agree that the aggregate fair market value of the assets of each Sold Subsidiary (the “Aggregate Fair Market Value”) will be appraised at Buyer’s expense as part of the Appraisal under Section 2.6 hereof. (c) In connection with the Election, Buyer and Seller shall mutually determine (i) the amount of the modified aggregated deemed sales price (“MADSP”) of the Target Shares (within the meaning of Treas. Reg. § 1.338(h)(10)-l(f)) and shall cause their relevant Affiliates to(ii) cooperate based on the Aggregate Fair Market Value as determined in the preparation Appraisal, the proper allocation of all formsthe MADSP among the assets of each Sold Subsidiary for which an Election is made in accordance with Treas. Reg.§ 1.338(h)(10)-l(f). The allocations referred to in the preceding sentence are referred to herein as the “338 Allocations.” Buyer, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 Seller and any similar forms under applicable state and local income Tax Laws (collectivelyrelevant Selling Subsidiary will calculate the gain or loss, the “Section 338(h)(10) Forms”) if any, in a manner consistent with the Total Purchase Price Allocation Schedule andAllocations, if anyand Buyer, the Allocation. Seller and any relevant Selling Subsidiary will not take any position inconsistent with the 338 Allocations in any Tax Return (subject to appropriate adjustments pursuant to Treas. Reg. § 1.338(h)(10)-l(f)(4)). (d) In the event Buyer delivers a Section 338 Election Notice to Seller, Buyer shall (or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with prepare each Form based on the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not338 Allocations, and shall not permit any of its Affiliates toshall, revoke no later than thirty (30) days prior to the Section 338(h)(10) Elections following latest date for the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and each Form, deliver each Form to Seller for Seller’s approval, respectivelywhich approval shall not be unreasonably withheld. (c) [Intentionally omitted]

Section 338(h)(10) Election. (a) At Buyer’s optionWith respect to Sellers’ sale of the Company Shares hereunder, exercised at any time on or prior Buyer and Sellers shall jointly make all available elections pursuant to September 30, 2018, Seller shall join with Buyer in making a timely election under Section 338(h)(10) of the Code (and any corresponding election under state, local, and foreign Law) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a “Section 338(h)(10) Election”). Seller shall pay any Tax attributable to the making of the Section 338(h)(10) Election and Seller shall indemnify Buyer and the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxes. (b) If a Section 338(h)(10) Election is made, Seller and Buyer shall (and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 and any or similar forms under applicable state and local income Tax Laws elections) (collectively, the “Section 338(h)(10) FormsElections”) in accordance with applicable Tax Laws. Buyer and Sellers agree to report the transfers under this Agreement consistent with Section 338(h)(10) Elections, and shall take no position contrary thereto unless required to do so by applicable Law. Buyer shall cooperate with Sellers to take all actions necessary or appropriate to effect and preserve a timely Section 338(h)(10) Election with respect to Buyer’s acquisition of the Company Shares and shares of the Included Subsidiaries as applicable, including but not limited to participating in the timely filing and execution of the Section 338 Forms. Sellers shall prepare all Section 338 Forms (other than sections or such forms that relate to information regarding the Buyer) and shall provide the Section 338 Forms to Buyer prior to the Closing. Buyer shall promptly and properly complete and execute all of the Section 338 Forms Sellers provide (provided that such forms are in proper order and form), as the same may be revised by the Buyer or Sellers, and Buyer shall provide the appropriately executed copies to Sellers at the Closing. The Purchase Price (and other amounts to be treated as consideration for Tax purposes) allocated to the Company Shares shall be further allocated among the assets of the Company, which allocation will be prepared and agreed to by the parties in a manner consistent with the Total Purchase Price Allocation Schedule and, if any, the Allocation. Seller and Buyer shall (or shall cause their relevant Affiliates to) timely file such procedures set forth in Section 338(h)(10) Forms with the applicable taxing authorities. Each of Seller and Buyer agrees that it shall not, and shall not permit any of its Affiliates to, revoke the Section 338(h)(10) Elections following the filing of the Section 338(h)(10) Forms without the prior written consent of Buyer and Seller, respectively2.10 hereof. (c) [Intentionally omitted]

Section 338(h)(10) Election. (ai) At Buyer’s optionThe Merger is intended to constitute a “qualified stock purchase” within the meaning of Section 338(d)(3) of the Code. The Shareholders and Parent shall make a timely, exercised at any time on or prior to September 30, 2018, Seller shall join with Buyer in making a timely irrevocable and effective election under Section 338(h)(10) of the Code (and any corresponding election under state, local, and foreign Law) with respect to the purchase and sale of the Shares of the Company hereunder (collectively, a “Section 338(h)(10) Election”). Seller shall pay any Tax attributable to the making of the Section 338(h)(10) Election and Seller shall indemnify Buyer and the Acquired Companies against any adverse consequences arising out of any failure to pay any such Taxes. (b) If a Section 338(h)(10) Election is made, Seller and Buyer shall (and shall cause their relevant Affiliates to) cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338(h)(10) Election, including IRS Forms 8023 and 8883 and any similar forms election under any applicable state and state, local or foreign income Tax Laws law (collectively, the “Section 338(h)(10) FormsElections”) with respect to Parent’s purchase of the Company Common Stock pursuant to the Merger. (ii) To facilitate the Section 338(h)(10) Elections, Parent shall deliver to each Shareholder at least 20 days prior to Closing, copies of IRS Form 8023 and any similar forms under applicable state, local and foreign income Tax law (collectively, the “Tax Elections”) properly completed to the extent pertaining to Parent and the transactions contemplated by this Agreement. The Tax Elections shall be properly completed by the Shareholders to the extent pertaining to the Shareholders and duly executed by each Shareholder and an authorized person for Parent prior to the Closing. Parent shall duly and timely file the Tax Elections as prescribed by Treasury Regulations Section 1.338(h)(10)-1 or the corresponding provisions of applicable state, local or foreign income Tax law. (iii) As soon as practicable after the Closing Date and in no event more than 45 days after the Closing Date, Shareholder Representative shall provide for Parent’s review and approval (not to be unreasonably withheld) a draft of IRS Form 8883, including the calculation and proposed allocation of the Aggregate Deemed Sales Price in a manner consistent with the Total Purchase Price Allocation requirements of Section 338 and the Treasury Regulations promulgated thereunder and the methodology set forth in Schedule and, if any, the Allocation. Seller and Buyer shall (or shall cause their relevant Affiliates to) timely file such Section 338(h)(10) Forms with the applicable taxing authorities5.9(b)(iii). Each of Seller Parent, the Company and Buyer agrees that it the Shareholders shall notprepare and file all Returns consistent with, and shall not permit take any of its Affiliates to, revoke Tax position inconsistent with the Section 338(h)(10) Elections following the filing of or such allocation. (iv) In connection with the Section 338(h)(10) Forms without Elections or the Alternative Transaction, Parent, the Shareholder Representative and their respective tax advisors shall, as soon as practicable after the date of this Agreement (and in any event at least five Business Days prior written consent to Closing) agree on the amount of Buyer and Sellerthe California Minimum Tax. For purposes of such determination, respectivelyany deductions or credits attributable to the transactions contemplated by this Agreement (e.g., any bonuses, cash-out of options or other compensatory payments, including any compensatory portion of the Company Distributions) shall be applied to reduce the California Minimum Tax liability to the maximum extent allowable under applicable law. (c) [Intentionally omitted]