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

Section 338(h)(10) Election. (a) At the request and direction of Purchaser, Seller shall make joint elections with Purchaser and file elections under Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-United States Tax law) with respect to the purchase of the Companies and Transferred Subsidiaries and, at Closing, the parties shall execute a Form 8023 (or successor form), with all attachments, with respect to each such purchase. The parties shall cooperate with each other to take all actions necessary and appropriate (including filing such additional forms, returns, elections, schedules and other documents as may be required) to effect and preserve each timely election in accordance with the provisions of Treasury Regulation § 1.338(h)(10)-1 (or any comparable provisions of state, local or non-United States Tax law) or any successor provisions. In connection with each such election, Seller shall prepare a draft Form 8883 (or successor form) and provide such draft Form 8883 to Purchaser no later than ninety (90) days prior to the due date of such Form 8883. If, within thirty (30) days after the receipt of the draft Form 8883, Purchaser notifies Seller in writing that Purchaser disagrees with the draft Form 8883, then the parties shall attempt in good faith to resolve their disagreement within the twenty (20) days following Purchaser’s notification to Seller of such disagreement. If Purchaser does not so notify Seller within thirty (30) days of receipt of the draft Form 8883, or upon resolution of the disputed items by the parties the draft Form 8883 shall become the “Final Form 8883”. If the parties are unable to resolve their disagreement within the twenty (20) days following any such notification by Purchaser, then the parties shall submit all such disputed items for resolution to the Independent Accounting Firm, whose decision shall be final and binding upon all persons involved and whose fees and expenses shall be borne equally by the parties. The Form 8883 delivered by the Independent Accounting Firm shall be the “Final Form 8883”. The parties shall act in good faith to cause the Independent Accounting Firm to deliver the Final Form 8883 within twenty (20) days after such submission. Other than to the extent Purchaser’s purchase price, as determined for federal income tax purposes, differs from the amount shown on the Final Form 8883, the parties shall (i) be bound by each such Final Form 8883 for purposes of determining any Taxes and (ii) prepare and file their Tax Returns on a basis consistent with each such Final Form 8883. The Purchase Price allocation pursuant to the Final Form 8883 shall be appropriately adjusted if and when any purchase price adjustments are made pursuant to Section 9.1(f) of this Agreement. No later than fifteen (15) days prior to the date such Form 8883 and any related documentation are required to be filed under the applicable laws, Seller shall execute and deliver to Purchaser the Final Form 8883.

Section 338(h)(10) Election. (aIf Buyer elects by delivery of written notice to the Seller on or before the date that is 150 days prior to the last date on which an election pursuant to Section 338(h)(10) At can be made with respect to the request and direction purchase of PurchaserStock contemplated by this Agreement, Seller will, subject to this Section 13.5, join with Buyer in making a Section 338(h)(10) election with respect to the purchase and sale of the Stock. Buyer and Seller shall make joint elections cooperate fully in the making of such Section 338(h)(10) election. In particular, and not by way of limitation, in order to effect such Section 338(h)(10) election, Buyer and Seller shall jointly execute, on or prior to the Closing Date, IRS Form 8023 and all attachments required to be filed therewith pursuant to the applicable United States Treasury regulations section. Such Form 8023 and attachments shall be held by Buyer and shall, subject to payment to the Seller in accordance with Purchaser the last sentence of this Section 13.5, be filed by Buyer on behalf of itself and file elections under Seller in accordance with, and within the time prescribed by, Section 338 of the Code and the regulations thereunder. Buyer and Seller agree to report the transaction for Tax purposes in a manner consistent with the making of such Section 338(h)(10) election. In the event that Buyer proposes to cause an election pursuant to Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-United States Tax law) with respect to the purchase of the Companies and Transferred Subsidiaries and, at Closing, the parties shall execute a Form 8023 (or successor form), with all attachments, with respect to each such purchase. The parties shall cooperate with each other to take all actions necessary and appropriate (including filing such additional forms, returns, elections, schedules and other documents as may be required) to effect and preserve each timely election made in accordance with this Section 13.5, Buyer shall, at least 150 days prior to the provisions last date on which such election can be made, prepare and deliver to Seller a schedule (the “Allocation Schedule”) pursuant to which the “aggregate deemed sales price” (within the meaning of Treasury Regulation § 1.338(h)(10)-1 Section 1.338-4) is allocated among the assets of Seller in accordance with Treasury Regulation Section 1.338-6 and 1.338-7. If Seller objects to any portion of the Allocation Schedule, it shall notify Buyer in writing within forty-five (45) days of the original receipt of the Allocation Schedule by Seller, failing which the Allocation Schedule shall become final. If Seller timely notifies Buyer of its objection to any portion or any comparable provisions portions of statethe Allocation Schedule originally delivered to Seller, local or non-United States Tax lawthe dispute resolution procedures set forth in Section 3.2(d) or any successor provisions. In shall apply (and, in connection with each such electiontherewith, Seller the Neutral Accountant shall prepare a draft Form 8883 be instructed to complete its analysis and render its decision not less than sixty (or successor form) and provide such draft Form 8883 to Purchaser no later than ninety (9060) days prior to the due last date on which the Section 338(h)(10) election can be made). The parties agree to file all state and federal income Tax Returns in a manner consistent with the Allocation Schedule as finalized to reflect the resolution of any timely filed objections by the Seller. As a condition to the filing of any Section 338(h)(10) election, Buyer shall pay to Seller, in immediately available funds at or prior to the filing the Section 338(h)(10) election, as additional Consideration, an amount such Form 8883. Ifthat the net after-Tax amount realized by Seller, after taking into account the amount received by Seller under this sentence, is equal to the amount Seller would have realized in the absence of a Section 338(h)(10) election (the “Tax Adjustment Amount”); and Seller shall provide to Buyer, within thirty forty-five (3045) days after the receipt of the draft Form 8883proposed Allocation Schedule, Purchaser notifies Seller a reasonably detailed calculation of the Tax Adjustment Amount required to be paid by Buyer hereunder (the “Tax Adjustment Calculation”) (which, if disputed, shall immediately be submitted for resolution in writing that Purchaser disagrees a manner consistent with the draft Form 8883, then the parties shall attempt procedures set forth in good faith to resolve their disagreement within the twenty (20Section 3.2(d) days following Purchaser’s notification to Seller of such disagreementabove and this Section 13.5). If Purchaser does not so notify Seller within thirty (30) days of receipt of the draft Form 8883, or upon resolution of the disputed items by the parties the draft Form 8883 shall become the “Final Form 8883”. If the parties are unable to resolve their disagreement within the twenty (20) days following any such notification by Purchaser, then the parties shall submit all such disputed items for resolution to the Independent Accounting Firm, whose decision The agreed Tax Adjustment Calculation shall be final and binding upon all persons involved and whose fees and expenses shall be borne equally by on the parties. The Form 8883 delivered by the Independent Accounting Firm shall be the “Final Form 8883”. The parties shall act in good faith to cause the Independent Accounting Firm to deliver the Final Form 8883 within twenty (20) days after such submission. Other than with regard to the extent Purchaser’s purchase price, as determined for federal income tax purposes, differs from the amount shown on the Final Form 8883, the parties shall (i) Tax Adjustment Amount required to be bound paid by each such Final Form 8883 for purposes of determining any Taxes and (ii) prepare and file their Tax Returns on a basis consistent with each such Final Form 8883Buyer to Seller. The Purchase Price allocation pursuant Anything elsewhere contained in this Section 13.5 to the Final Form 8883 shall be appropriately adjusted if and when contrary notwithstanding, Buyer may withdraw its proposal to file a Section 338(h)(10) election at any purchase price adjustments are made pursuant to Section 9.1(f) of this Agreement. No later than fifteen (15) days time prior to the date such Form 8883 and any related documentation are required to be filed under the applicable laws, Seller shall execute and deliver to Purchaser the Final Form 8883filing thereof.

Section 338(h)(10) Election. (a) At the request Buyer and direction of Purchaser, Seller shall make joint elections with Purchaser and file elections agree that an election under Section 338(h)(10) of the Code (and Section 1.338(h)(10)-1 of the Treasury Regulations promulgated thereunder and any comparable provisions elections available under applicable U.S. state or local Tax law in respect of state, local or non-United States Tax law) with respect to the purchase of the Companies and Transferred Subsidiaries and, at ClosingShares under this Agreement (collectively, the parties “Section 338(h)(10) Election”) shall execute a be jointly made by them or their applicable Affiliates. Buyer shall, with the reasonable assistance and cooperation of Seller, prepare Internal Revenue Service Form 8023 and any similar U.S. state or local Tax forms (together with any schedules or successor form), with all attachments, with respect to each such purchase. The parties shall cooperate with each other to take all actions necessary attachments thereto) that are required by Section 338 of the Code and appropriate (including filing such additional forms, returns, elections, schedules and other documents as may be required) to effect and preserve each timely election in accordance with the provisions of underlying Treasury Regulation § 1.338(h)(10)-1 Regulations (or any comparable provisions applicable provision of state, state or local or non-United States Tax law) or any successor provisionsto make the Section 338(h)(10) Election (collectively, the “Section 338 Forms”) in accordance with applicable U.S. Tax laws. In connection with each Subject to Section 10.8(b), (i) Buyer shall deliver the Section 338 Forms to Seller for its review, comment and consent (such election, Seller shall prepare a draft Form 8883 (or successor formconsent not to be unreasonably withheld) and provide such draft Form 8883 to Purchaser no later than ninety (90) at least 60 calendar days prior to the due date of such Form 8883. If, within thirty (30) days after the receipt of the draft Form 8883, Purchaser notifies Seller in writing that Purchaser disagrees with the draft Form 8883, then the parties shall attempt in good faith to resolve their disagreement within the twenty (20) days following Purchaser’s notification to Seller of such disagreement. If Purchaser does not so notify Seller within thirty (30) days of receipt of the draft Form 8883, or upon resolution of the disputed items by the parties the draft Form 8883 shall become the “Final Form 8883”. If the parties are unable to resolve their disagreement within the twenty (20) days following any such notification by Purchaser, then the parties shall submit all such disputed items for resolution to the Independent Accounting Firm, whose decision shall be final and binding upon all persons involved and whose fees and expenses shall be borne equally by the parties. The Form 8883 delivered by the Independent Accounting Firm shall be the “Final Form 8883”. The parties shall act in good faith to cause the Independent Accounting Firm to deliver the Final Form 8883 within twenty (20) days after such submission. Other than to the extent Purchaser’s purchase price, as determined for federal income tax purposes, differs from the amount shown on the Final Form 8883, the parties shall (i) be bound by each such Final Form 8883 for purposes of determining any Taxes filing and (ii) prepare and file their Tax Returns on a basis consistent with each such Final Form 8883. The Purchase Price allocation pursuant to the Final Form 8883 shall be appropriately adjusted if and when any purchase price adjustments are made pursuant to Section 9.1(f) of this Agreement. No upon its approval (but no later than fifteen (15) 30 calendar days prior to the due date such Form 8883 and any related documentation are required to be filed under the applicable laws, of filing) Seller shall execute and deliver to Purchaser Buyer signed and completed Section 338 Forms. Seller and Buyer shall each adopt and abide by the Final Form 8883Section 338 Forms for purposes of all income Tax Returns filed by them and shall not take any position inconsistent therewith in connection with any examination of any such Tax Return, any refund claim, or any judicial litigation proceeding unless there has been a final determination of a Governmental Authority which finally and conclusively establishes the amount of any liability for Taxes. In the event that the Section 338(h)(10) Election or the Purchase Price Allocation described in Section 10.8(b) is disputed by any taxing authority, the party receiving notice of the dispute shall promptly notify the other parties hereto in writing of such dispute (including a copy of such notice in the notification) and the parties hereto shall reasonably consult and cooperate with each other concerning resolution of such dispute.