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

Section 338(h)(10) Election. At the election of the Buyer, which shall be furnished to the Seller in writing no later than one hundred and twenty (120) days after the Closing Date, each of the Seller and the Buyer shall cause an authorized person to make a valid and timely joint election under Section 338(h)(10) of the Code and a similar election under any applicable state or local income tax law for Gerber Products and/or Gerber Life (the “Section 338(h)(10) Election”). Thereafter, the Seller and the Buyer shall cooperate in the preparation and execution of Internal Revenue Service Form 8023 and any similar forms under applicable state or local tax law (the “Forms”). The Buyer shall timely file the Forms with the relevant taxing authorities. The Buyer shall duly and timely file the Forms as prescribed by Treasury Regulation §1.338(h)(10)-1 or the corresponding provisions of applicable state, local or foreign income tax Law, and deliver evidence of such filings to the Seller. The Buyer shall and the Seller shall cause U.S. Parent to timely file Internal Revenue Service Form 8883. If a Section 338(h)(10) Election is made, the Seller and the Buyer shall agree upon an allocation of the “adjusted deemed sale price” among the assets of Gerber Products and/or Gerber Life in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder in a manner consistent with Section 2.3(g). The term “adjusted deemed sale price” shall be based on the portion of Purchase Price allocated to the Shares of Gerber Products and/or Gerber Life and shall otherwise be determined in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder. The Buyer and the Seller and their respective Affiliates shall file Tax Returns (including Internal Revenue Service Form 8883 or any successor form) consistent with this allocation. To the extent that interest accrues or an adjustment to the Purchase Price occurs, the Parties shall promptly make appropriate adjustments to such allocations.

Section 338(h)(10) Election. (i) At the election of Parent, the Buyer, which Company Shareholders and Parent shall be furnished to the Seller in writing no later than one hundred and twenty (120) days after the Closing Date, each of the Seller and the Buyer shall cause an authorized person to make a valid timely, irrevocable and timely joint effective election under Section 338(h)(10) of the Code and a any similar election under any applicable state state, local or local foreign income tax Tax law for Gerber Products and/or Gerber Life (collectively, the “Section 338(h)(10) ElectionElections”) with respect to Parent’s purchase of the Company Capital Stock pursuant to the Merger. In connection with the Section 338(h)(10) Elections, Parent shall pay to each Company Shareholder an amount equal to such Company Shareholder’s ratable share of $500,000 (the “Gross-Up Amount”). Thereafter. (ii) To facilitate the Section 338(h)(10) Elections, Parent shall deliver to the Seller and the Buyer shall cooperate in the preparation and execution Company Shareholders, at least ten (10) days prior to Closing, copies of Internal Revenue Service Form 8023 and any similar forms under applicable state or state, local tax and foreign income Tax law (collectively, the “Forms”)) properly completed to the extent pertaining to Parent and the transactions contemplated by this Agreement. The Buyer Forms shall timely file be properly completed by the Forms with Company Shareholders to the relevant taxing authoritiesextent pertaining to the Company Shareholders and duly executed by each Company Shareholder and an authorized person for Parent at the Closing. The Buyer In the event that Parent elects to make the Section 338(h)(10) Elections, Parent shall duly and timely file the Forms as prescribed by Treasury Regulation §Regulations Section 1.338(h)(10)-1 or the corresponding provisions of applicable state, local or foreign income tax LawTax law. (iii) In connection with the Section 338(h)(10) Elections, and deliver evidence Parent shall provide the Shareholder Representative with a draft of such filings to the Seller. The Buyer shall and the Seller shall cause U.S. Parent to timely file Internal Revenue Service Form 8883. If a Section 338(h)(10) Election is made, 8883 (including the Seller and the Buyer shall agree upon an proposed allocation of the “adjusted deemed sale price” among the assets of Gerber Products and/or Gerber Life in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder Aggregate Deemed Sales Price in a manner consistent with Section 2.3(g). The term “adjusted deemed sale price” shall be based on the portion requirements of Purchase Price allocated to the Shares of Gerber Products and/or Gerber Life and shall otherwise be determined in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder). If the Section 338(h)(10) Elections are made, each of Parent, the Company and the Company Shareholders shall prepare and file all Tax Returns consistent with, and shall not take any Tax position inconsistent with, the Form 8883. (iv) If the Forms are not received from all Company Shareholders at the Closing, no later than one (1) Business Day following the day on which the Effective Time occurs, Parent will deposit the Gross-Up Amount with the Escrow Agent. The Buyer and Gross-Up Amount will not become part of the Seller and their respective Affiliates Escrow Fund, but will be held in by the Escrow Agent in accordance with the terms of Sections 8.5(d) – 8.5(h). Within three (3) Business Days of receipt of the Forms from all Company Shareholders, Parent shall file Tax Returns (including Internal Revenue Service Form 8883 or any successor form) consistent with this allocation. To instruct the extent that interest accrues or an adjustment Escrow Agent to release the Gross-Up Amount to the Purchase Price occursCompany Shareholders in proportion to the Company Shareholders’ respective Shareholder Pro Rata Portion. Upon the release of the Gross-Up Amount to the Shareholder Representative pursuant to this Section 6.8(g)(iv), Parent’s obligations under Section 6.8(g)(i) shall be deemed to be satisfied. If (x) the Forms of all Company Shareholders are not received by Parent by the eight (8) month anniversary of the date of this Agreement or (y) Parent provides written notice to the Shareholder Representative (with a copy to the Escrow Agent) prior to the eight (8) month anniversary of the date of this Agreement that they have not made, and will not make, the Parties Section 338(h)(10) Elections, the Escrow Agent shall promptly make appropriate adjustments release the Gross-Up Amount and any interest thereon to such allocationsParent.

Section 338(h)(10) Election. At the election of the Buyer, which shall be furnished to the (a) Seller in writing no later than one hundred and twenty Purchaser (120) days after the Closing Date, and each of the Seller and the Buyer their applicable Affiliates) shall cause an authorized person to make a valid jointly and timely joint election make and file irrevocable elections under Section 338(h)(10) of the Code and a similar election under and, if permissible, any comparable provisions of applicable state or local income tax law Tax Law (together, the “Section 338 Elections”) with respect to the purchase and sale of the Shares under this Agreement, including the deemed purchase and sale of the outstanding capital stock of the Subsidiaries resulting from the Section 338 Election with respect to the purchase and sale of the Shares. No later than ten (10) Business Days prior to the Closing Date, Seller shall deliver to Purchaser for Gerber Products and/or Gerber Life its review and comment draft IRS Forms 8023 for each of the Companies, including any schedules thereto, and any corresponding or similar forms required under applicable state and local Law to make the Section 338 Elections (the “Section 338(h)(10) Election”). Thereafter, the Seller and the Buyer shall cooperate in the preparation and execution of Internal Revenue Service Form 8023 and any similar forms under applicable state or local tax law (the “338 Forms”). The Buyer Seller shall timely file incorporate any and all reasonable comments to the Section 338 Forms with received from Purchaser in writing prior to the relevant taxing authoritiesClosing. The Buyer At the Closing, Seller shall deliver to Purchaser the Section 338 Forms, duly executed by Seller (and its applicable Affiliates) for execution by Purchaser at Closing. Each of Seller and Purchaser shall execute and timely file such Section 338 Forms in accordance with applicable Law. (b) The parties (and any applicable Affiliates) shall cooperate with each other to take all actions necessary and appropriate (including filing such additional forms, Tax Returns, elections, schedules and other documents as may be required) to effect and preserve the Section 338 Elections in accordance with Regulations Section 1.338(h)(10)-1 (or any comparable provisions of state or local Tax Law) or any successor provisions. Seller and Purchaser agree that neither of them shall, or shall permit any of its Affiliates to, revoke the Section 338 Elections following the filing of the Section 338 Forms without the prior written consent of Seller or Purchaser, as prescribed the case may be. Seller and Purchaser (and their respective applicable Affiliates) shall file all Tax Returns consistent with the Section 338 Elections and shall not take any action that could cause the Section 338 Elections to be invalid, or take any position contrary thereto unless required pursuant to a determination as defined in Section 1313(a) of the Code or any similar provision of state or local Tax Law. (c) Purchaser will retain Bond & Xxxxxx, Inc. (the “Appraiser”) to value each Company and the individual assets of the Business conducted by Treasury Regulation §1.338(h)(10)-1 each Company (such valuation, the “Appraisal”), and the costs of obtaining the Appraisal shall be borne equally by Purchaser and Seller. Seller shall reasonably cooperate with the Appraisal process, including responding to any reasonable requests for information from the Appraiser, and shall be entitled to receive, review and respond to draft reports prior to completion of the Appraisal. Purchaser shall direct the Appraiser to consider in good faith any comments of Seller on any draft reports, provided the Appraiser shall retain the ultimate discretion and authority with respect to the Appraisal. Purchaser shall deliver a copy of the Appraisal to Seller upon completion. Within ninety (90) days following the later of Determination Date or the corresponding provisions Closing Date, Purchaser shall prepare and deliver to Seller a schedule setting forth (i) a determination of the ADSP (as defined in the applicable state, local or foreign income tax LawRegulations under Section 338 of the Code) for each Company, and deliver evidence of such filings to the Seller. The Buyer shall and the Seller shall cause U.S. Parent to timely file Internal Revenue Service Form 8883. If a Section 338(h)(10(ii) Election is made, the Seller and the Buyer shall agree upon an allocation of the “adjusted deemed sale price” ADSP of each Company among the assets of Gerber Products and/or Gerber Life the Company, which shall be prepared in accordance with Section Sections 338 and 1060 of the Code and the Treasury Regulations promulgated thereunder and based on the Appraisal (the “Proposed Allocation Schedule”). Seller shall have thirty (30) days following receipt of the Proposed Allocation Schedule to provide written notice to Purchaser of any good faith objection to any portion of the Proposed Allocation Schedule, which objection shall be set forth with reasonable detail in such notice. Unless Seller timely delivers notice of an objection to the Proposed Allocation Schedule, Seller shall be deemed to accept and approve the Proposed Allocation Schedule, which shall thereafter be final and binding upon the parties. (d) Following receipt of any timely notice of any objection to the Proposed Allocation Schedule, the parties shall attempt in good faith to resolve their disagreement and arrive at a mutually agreed allocation. If the parties are unable to reach agreement within thirty (30) days following notice by Seller to Purchaser of an objection to the Proposed Allocation Schedule, then any unresolved disputed matters shall be submitted to the Auditor for final determination in a manner consistent with Section 2.3(g2.06(c). The term “adjusted deemed sale price” Auditor’s resolution of the disputed matters shall be based final and binding on the portion of Purchase Price allocated parties. (e) The Proposed Allocation Schedule as accepted (or deemed accepted) pursuant to Section 7.05(c) or as finally agreed and determined pursuant to Section 7.05(d) shall become the Shares of Gerber Products and/or Gerber Life and shall otherwise be determined in accordance with Section 338 of the Code “Final Allocation Schedule” and the Treasury Regulations promulgated thereunder. The Buyer and the Seller and their respective Affiliates parties shall file all Tax Returns (including Internal Revenue Service but not limited to IRS Form 8883 or and any successor formsimilar forms required by applicable state and local Law) consistent with this the Final Allocation Schedule and shall not take any position contrary thereto in connection with any Action relating to Taxes; provided, however, that nothing contained herein shall prevent Seller or Purchaser (and their respective Affiliates) from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the Final Allocation Schedule, and neither Seller nor Purchaser shall be required to litigate before any court, any proposed deficiency or adjustment by any Governmental Authority challenging such allocation. To the extent that interest accrues or an adjustment to If the Purchase Price occursis adjusted pursuant to Section 9.07, the Parties Final Allocation Schedule shall promptly make appropriate adjustments to such allocationsbe adjusted in a consistent manner.

Section 338(h)(10) Election. At (a) The Purchaser will join with the election of the Buyer, which shall be furnished to the Seller Companies in writing no later than one hundred and twenty (120) days after the Closing Date, each of the Seller and the Buyer shall cause making an authorized person to make a valid and timely joint election under Section 338(h)(10) of the Internal Revenue Code and a similar election under any applicable state or local income tax law for Gerber Products and/or Gerber Life of 1986, as amended (the “Section 338(h)(10) Election”"Code"). Thereafter, the Seller and the Buyer shall cooperate in the preparation and execution of Internal Revenue Service Form 8023 regulations thereunder (and any similar forms corresponding elections under applicable state or local tax law (the “Forms”). The Buyer shall timely file the Forms with the relevant taxing authorities. The Buyer shall duly and timely file the Forms as prescribed by Treasury Regulation §1.338(h)(10)-1 or the corresponding provisions of applicable state, local or foreign income tax Law, and deliver evidence of such filings law) with respect to the Sellerpurchase of the capital stock of all of the Subsidiaries (collectively, the "Section 338(h)(10) Election"). All Section 338 Forms will be prepared by the Companies, subject to written approval by the Purchaser. The Buyer Companies shall submit any such Section 338 Forms to the Purchaser at least ten (10) days prior to its due date for review and the Seller approval. "Section 338 Forms" shall cause U.S. Parent mean all returns, documents, statements and other forms that are required to timely file Internal Revenue Service Form 8883. If be submitted to any federal, state, county or other local taxing authority in connection with a Section 338(h)(10) Election is madeElection, the Seller including without limitation, any "statement of Section 338 election" and the Buyer shall agree upon an IRS Form 8023 (together with any schedules or attachments thereto) that are required pursuant to applicable Treasury Regulations. (b) The allocation of the “"adjusted deemed sale price” " as defined in Treasury Regulation section 1.338-4(b) among the assets of Gerber Products and/or Gerber Life Subsidiaries shall be made in accordance with Section Sections 338 and 1060 of the Code and any comparable provisions of state, local or foreign law, as appropriate. The procedures for creating a schedule setting forth such allocation shall be as follows (the Treasury Regulations promulgated thereunder "Allocation Schedule"): (i) the Companies shall prepare and deliver the Allocation Schedule to the Purchaser no later than ninety (90) days after the date of the Closing (the "Delivery Date"); the Purchaser shall have thirty (30) days from the date the Companies deliver the Allocation Schedule to the Purchaser to review the Allocation Schedule and provide reasonable written comments on such Allocation Schedule (the "Purchaser's Comments"); if the Purchaser does not deliver to the Companies the Purchaser's Comments within thirty (30) days after the day that the Companies deliver the Allocation Schedule to the Purchaser, the Purchaser will be deemed to have accepted and agreed to the allocations made on the Allocation Schedule; (ii) if the Companies do not deliver the Allocation Schedule to the Purchaser prior to midnight Eastern Time on the Delivery Date, then the Purchaser shall prepare the Allocation Schedule and will deliver the Allocation Schedule to Companies within sixty (60) days after the Delivery Date; the Companies shall have thirty (30) days from the date the Purchaser delivers the Allocation Schedule to the Companies to review the Allocation Schedule and provide reasonable comments on such Allocation Schedule (the "Companies' Comments") to the Purchaser; if the Companies do not deliver to the Purchaser the Companies' Comments within thirty (30) days after the day the Purchaser delivers the Allocation Schedule to the Companies, the Companies will be deemed to have accepted and agreed to the allocations made on the Allocation Schedule by the Purchaser. In case of any disagreement with respect to allocation, the parties agree to work in a manner good faith to resolve their differences with respect to the Allocation Schedule no later than 210 days after the date of the Closing. The Companies and Purchaser shall report, act and file in all respects and for all purposes consistent with the Allocation Schedule that they agree upon. (c) The Companies shall be responsible for and shall pay all Taxes (as defined below) of the Subsidiaries arising as a result of (i) any Section 2.3(g338(h)(10) Election filed by Purchaser and the Companies or (ii) the distribution from LASC to Keyport Life Insurance Company referred to in Section 4.1(e) of this Agreement (the "LASC Distribution"); provided that the aggregate liabilities of the Companies under clause (i) shall not exceed the sum of (A) the federal income tax that is imposed on "Old T", as a result of the transaction that is deemed to occur under Treasury Regulation section 1.338(h)(10)-1(d)(3) as a result of the parties filing a Section 338(h)(10) Election, plus (B) any state income tax due on any comparable or resulting election under state law, or the application of the Section 338(h)(10) Election to the calculation of state taxable income. The term “adjusted deemed sale price” shall Companies and the Purchaser agree that a joint election will be based on the portion of Purchase Price allocated made under Treasury Regulation section 1.848-2(g)(8), relating to the Shares capitalization of Gerber Products and/or Gerber Life and shall otherwise be determined in accordance specified policy acquisition expenses with respect to a reinsurance transaction without regard to the general deduction limitations of Section 338 848(c)(1) of the Code Code. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER The Purchaser represents and the Treasury Regulations promulgated thereunder. The Buyer and the Seller and their respective Affiliates shall file Tax Returns (including Internal Revenue Service Form 8883 or any successor form) consistent with this allocation. To the extent that interest accrues or an adjustment warrants to the Purchase Price occurs, the Parties shall promptly make appropriate adjustments to such allocations.Companies that:

Section 338(h)(10) Election. At the election of the Buyer, which (i) The Stockholders and Parent shall be furnished to the Seller in writing no later than one hundred and twenty (120) days after the Closing Date, each of the Seller and the Buyer shall cause an authorized person to make a valid timely, irrevocable and timely joint effective election under Section 338(h)(10) of the Code and a any similar election under any applicable state state, local or local foreign income tax Tax law for Gerber Products and/or Gerber Life (collectively, the “Section 338(h)(10) Election”). Thereafter) with respect to Parent’s purchase of the Company Common Stock pursuant to the Merger. (ii) To facilitate the Section 338(h)(10) Election, Parent shall deliver to the Seller Stockholders promptly following the date of this Agreement and at least ten (10) days prior to the Buyer shall cooperate in the preparation and execution Closing Date, copies of Internal Revenue Service Form 8023 and any similar forms under applicable state or state, local tax and foreign income Tax law (collectively, the “Forms”)) properly completed to the extent pertaining to Parent and the transactions contemplated by this Agreement. The Buyer Forms shall timely file be properly completed by the Forms with Stockholders to the relevant taxing authoritiesextent pertaining to the Stockholders and duly executed by each Stockholder and an authorized person for Parent at the Closing. The Buyer Parent shall duly and timely file the Forms as prescribed by Treasury Regulation §Regulations Section 1.338(h)(10)-1 or the corresponding provisions of applicable state, local or foreign income tax LawTax law. (iii) As soon as practicable after the Closing Date and in any event within 90 days following the Closing Date, and deliver evidence of such filings to the Seller. The Buyer shall Parent and the Seller Stockholder Representative shall cause U.S. Parent to timely file jointly complete Internal Revenue Service Form 8883. If a Section 338(h)(10) Election is made, Such Form 8883 shall include the Seller calculation and the Buyer shall agree upon an proposed allocation of the “adjusted aggregate deemed sale sales price” among the assets of Gerber Products and/or Gerber Life in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder shall be prepared in a manner consistent with Section 2.3(g). The term “adjusted deemed sale price” shall be based on the portion requirements of Purchase Price allocated to the Shares of Gerber Products and/or Gerber Life and shall otherwise be determined in accordance with Section 338 of the Code and the Treasury Regulations promulgated thereunder. The Buyer Parent and the Seller and their respective Affiliates Stockholder Representative shall file Tax Returns (including negotiate in good faith with respect to completion of such Internal Revenue Service Form 8883 or and attempt to resolve any successor form) consistent differences between the parties. If Parent and the Stockholder Representative are unable to reach agreement with this allocationrespect to such Form 8883 within 150 days following the Closing Date, any disputed items shall be referred for timely resolution by the Independent Accounting Firm. To The costs of the extent that interest accrues or an adjustment Independent Accounting Firm shall be shared equally between Parent, on the one hand, and the Stockholders, on the other hand, from the Stockholder Representative Fund. The determination of the Independent Accounting Firm with respect to the Purchase Price occursdisputed items shall be conclusive and binding on Parent and the Stockholders. The Form 8883, including all information that has been agreed to or finally determined by the Independent Accounting Firm pursuant to this Section 5.13(b)(iii), shall be referred to as the “Final Allocation.” Each of Parent, the Parties Company and the Stockholders shall promptly make appropriate adjustments to such allocationsprepare and timely file all Returns consistent with, and shall not take any Tax position inconsistent with, the Final Allocation.