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

Section 338(h)(10) Election. With respect to Sellers’ sale of the Company Shares hereunder, Buyer and Sellers shall jointly make all available elections pursuant to Section 338(h)(10) of the Code (or similar state and local elections) (collectively, the “Section 338(h)(10) Elections”) 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 procedures set forth in Section 2.10 hereof.

Section 338(h)(10) Election. With respect (a) If timely requested in writing by the Buyer and conditioned on the advanced payment by Buyer to Sellers’ sale Sellers of the Company Shares hereunderGross Up Amount, Buyer and Sellers shall jointly make all available elections pursuant to cooperate with Buyer in making and filing an election on Internal Revenue Service Form 8023 under Section 338(h)(10) of the Code (or with respect to the sale and purchase of Shares pursuant to this Agreement and any similar state law provisions in all states in which such elections are legally permitted to be made in connection with the sale and local elections) purchase of the Membership Interests pursuant to this Agreement, and each party shall provide the others with all necessary information reasonably requested in writing by the other party to permit such elections to be made (collectively, referred to as the “Section 338(h)(10) Elections338 Election”) ). If timely requested in accordance with applicable Tax Laws. Buyer and writing by the Buyer, Sellers agree to report shall, at Buyer’s expense, as promptly as practicable following the transfers under this Agreement consistent with Section 338(h)(10) ElectionsClosing Date, and shall take no position contrary thereto unless required to do so by applicable Law. Buyer shall cooperate with Sellers to Buyer as reasonably requested in writing by Buyer so that Buyer can take all actions necessary or and appropriate (including filing such forms, returns, schedules and other documents as may be required) to effect and preserve a timely Code Section 338(h)(10) Election election with respect to the transactions contemplated by this Agreement; provided, however, that (i) Buyer shall be the party responsible for preparing Internal Revenue Service Form 8023 and any other forms, returns, schedules and other documents necessary for making an effective and timely Code Section 338(h)(10) election with respect to the transactions contemplated by this Agreement and (ii) any such forms, returns, schedules and other documents shall be prepared and filed at Buyer’s acquisition expense and shall be subject to Sellers’ review and approval (not to be unreasonably withheld, conditioned or delayed). Without limiting the foregoing: within forty five (45) days after the final determination of the Company Shares and shares Closing Working Capital pursuant to Section 2.4.4, Buyer shall deliver to the Seller an allocation of the Included Subsidiaries “aggregate deemed sales price” (as applicable, including but not limited to participating such term is defined in the timely filing and execution of the Treasury Regulations Section 338 Forms. Sellers shall prepare all Section 338 Forms (other than sections or such forms that relate to information regarding the Buyer1.338-4) 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 Company in accordance with Treasury Regulations Sections 1.338-6 and 1.338-7 (the Company“Allocation Statement”), which allocation including any work papers, schedules and other information used in connection with preparing the Allocation Statement. The parties agree that no portion of the aggregate deemed sales price will be allocated to any non-solicitation, non-compete or other restrictive covenants provided in this Agreement, and that the allocation to depreciable assets will be based on each such asset’s adjusted basis for U.S. federal income Tax purposes immediately prior to the Closing Date. The allocation of the aggregate deemed sales price shall be in accordance with the fair market value of the acquired assets as provided in Section 1060 of the Code. The Sellers shall have the right to review the Allocation Statement. Within forty-five (45) days after the Sellers’ receipt of the Allocation Statement, the Sellers shall indicate its concurrence therewith, or propose to Buyer any changes to the Allocation Statement. The Sellers’ failure to notify Buyer of any objection to the Allocation Statement within forty-five (45) days after receipt thereof shall constitute the Sellers’ concurrence therewith. Should the Sellers propose any change to the Allocation Statement, Buyer and the Sellers shall cooperate to resolve any disagreement regarding the Allocation Statement. If Buyer and the Sellers are unable to reach an agreement, any dispute arising under this Section 12.16 shall be referred to the Independent Accountants for resolution in a manner similar to Section 2.4.3. The Final Allocation Statement shall be binding on the parties, and all Tax Returns filed by Buyer, Company and the Seller shall be prepared consistently with the Final Allocation Statement, and agreed none of them shall take a position on any Tax Return or other form or statement contrary to such allocation, unless otherwise required by applicable Law. Any adjustments to the Purchase Price pursuant to this Agreement shall be allocated by the parties Buyer in a manner consistent with the Allocation Statement, and shall be subject to the procedures and dispute resolution mechanisms set forth in this Section 2.10 hereof12.16. The Allocation Statement as finally determined under this Section 12.16 is referred to as the “Final Allocation Statement.”

Section 338(h)(10) Election. With respect (a) If requested in writing by the Buyer no later than thirty (30) days prior to Sellers’ sale of the Company Shares hereunderelection deadline, Buyer and Sellers shall jointly make all available elections pursuant to cooperate with Buyer in making and filing an election on Internal Revenue Service Form 8023 under Section 338(h)(10) of the Code (or with respect to the sale and purchase of shares pursuant to this Agreement and any similar state law provisions in all states in which such elections are legally permitted to be made in connection with the sale and local elections) purchase of the shares pursuant to this Agreement, and each party shall provide the others with all necessary information reasonably requested in writing by the other party to permit such elections to be made (collectively, referred to as the “Section 338(h)(10) Elections338 Election”) ). If timely requested in accordance with applicable Tax Laws. Buyer and writing by the Buyer, Sellers agree to report shall, at Xxxxx’s expense, as promptly as practicable following the transfers under this Agreement consistent with Section 338(h)(10) ElectionsClosing Date, and shall take no position contrary thereto unless required to do so by applicable Law. Buyer shall cooperate with Sellers to Buyer as reasonably requested in writing by Buyer so that Buyer can take all actions necessary or and appropriate (including filing such forms, returns, schedules and other documents as may be required) to effect and preserve a timely Code Section 338(h)(10) Election election with respect to the transactions contemplated by this Agreement; provided, however, that (i) Buyer shall be the party responsible for preparing Internal Revenue Service Form 8023 and any other forms, returns, schedules and other documents necessary for making an effective and timely Code Section 338(h)(10) election with respect to the transactions contemplated by this Agreement and (ii) any such forms, returns, schedules and other documents shall be prepared and filed at Buyer’s acquisition expense and shall be subject to Sellers’ review and approval (not to be unreasonably withheld, conditioned or delayed). Without limiting the foregoing: within forty five (45) days after the final determination of the Company Shares and shares Closing Working Capital, Buyer shall deliver to the Seller an allocation of the Included Subsidiaries “aggregate deemed sales price” (as applicable, including but not limited to participating such term is defined in the timely filing and execution of the Treasury Regulations Section 338 Forms. Sellers shall prepare all Section 338 Forms (other than sections or such forms that relate to information regarding the Buyer1.338- 4) 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 Company in accordance with Treasury Regulations Sections 1.338-6 and 1.338-7 (the Company“Allocation Statement”), which allocation including any work papers, schedules and other information used in connection with preparing the Allocation Statement. The parties agree that no portion of the aggregate deemed sales price will be allocated to any non-solicitation, non-compete or other restrictive covenants provided in this Agreement, and that the allocation to depreciable assets will be based on each such asset’s adjusted basis for U.S. federal income Tax purposes immediately prior to the Closing Date. The allocation of the aggregate deemed sales price shall be in accordance with the fair market value of the acquired assets as provided in Section 1060 of the Code. The Sellers shall have the right to review the Allocation Statement. Within forty-five (45) days after the Sellers’ receipt of the Allocation Statement, the Sellers shall indicate its concurrence therewith, or propose to Buyer any changes to the Allocation Statement. The Sellers’ failure to notify Buyer of any objection to the Allocation Statement within forty-five (45) days after receipt thereof shall constitute the Sellers’ concurrence therewith. Should the Sellers propose any change to the Allocation Statement, Buyer and the Sellers shall cooperate to resolve any disagreement regarding the Allocation Statement. If Buyer and the Sellers are unable to reach an agreement, any dispute arising under this Section 12.14 shall be referred to the Independent Accountants for resolution in a manner similar to Section 2.4.3. The Final Allocation Statement shall be binding on the parties, and all Tax Returns filed by Buyer, Company and the Seller shall be prepared consistently with the Final Allocation Statement, and agreed none of them shall take a position on any Tax Return or other form or statement contrary to such allocation, unless otherwise required by applicable Law. Any adjustments to the Purchase Price pursuant to this Agreement shall be allocated by the parties Buyer in a manner consistent with the Allocation Statement, and shall be subject to the procedures and dispute resolution mechanisms set forth in Section 2.10 hereofthis Section.

Section 338(h)(10) Election. With respect to Sellers’ sale of the Company Shares hereunder(a) Where permitted under applicable Law, Buyer Purchaser and Sellers shall jointly agree to make all available elections pursuant to Section a joint election under Sections 338(g) and 338(h)(10) of the Code with respect to the sale of the Shares under this Agreement for each Acquired Company and each of its Subsidiaries (or similar state and local elections) (collectivelytogether, the “Section 338(h)(10) Elections”). The Purchaser and the Sellers shall cooperate to identify the states and localities for which a Section 338(h)(10) Election would be made. At the Closing or, if the Purchaser and the Sellers identify a state or locality for which a Section 338(h)(10) Election would be made after the Closing, promptly after such identification, the Sellers shall deliver to the Purchaser an Internal Revenue Service Form 8023, Elections Under Section 338 for Corporations Making Qualified Stock Purchases, and any corresponding forms under comparable provisions of applicable state or local Law with respect to the Section 338(h)(10) Elections duly executed by Sellers. As requested from time to time by Sellers or Purchaser (whether before, at, or after the Closing), the Sellers and the Purchaser shall assist each other in, and shall provide the necessary information to each other, in accordance connection with applicable Tax Laws. Buyer the preparation of any other forms and Sellers agree documentation required to report the transfers under this Agreement consistent with effect valid and timely Section 338(h)(10) Elections, . The Purchaser shall be responsible for the timely filing of the Section 338(h)(10) Elections with the appropriate Governmental Authorities and shall take no position contrary thereto unless required to do so by applicable Lawprovide the Sellers with a copy of the Section 338(h)(10) Election forms as filed within five Business Days after filing. Buyer The Purchaser and the Sellers shall cooperate with Sellers to take all actions reasonably necessary or appropriate steps and cooperate in good faith, including the exchange of information, to effect and preserve a valid and 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 procedures set forth in Section 2.10 hereof.