Common use of Section 338 Election Clause in Contracts

Section 338 Election. (i) Seller and Buyer will make a joint election under Section 338(h)(10) of the Code, and, at the request of Buyer, any corresponding elections under state, local or foreign Tax Law, with respect to the purchase and sale of the Stock under this Agreement. Seller will allocate the “aggregate deemed sales price” as computed under applicable Treasury Regulations among the Acquired Companies’ assets in accordance with Section 5.12(b)(iii). Seller and Buyer agree to take all actions necessary or appropriate, including properly completing and executing IRS Form 8023, to make the election under Section 338(h)(10) of the Code and (if requested by Buyer) and comparable applicable state Law for the Acquired Companies. (ii) Buyer will have the initial responsibility for the timely preparation of IRS Form 8023, and the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8023, comparable state, local or foreign forms, statements, schedules and information (the “Form 8023 Package”) will be submitted to Seller for its review no later than 45 days after the Closing Date. Within 30 days after Seller receives the Form 8023 Package, Seller will notify Buyer of any objections or proposed changes. If Seller has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will promptly file the Form 8023 and the relevant attachments with the IRS via certified mail with return receipt requested. As soon as practicable thereafter, Seller and Buyer will furnish to each other a photocopy of such certificate of mailing and return receipt. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Buyer receives notice of objection from Seller, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8023 Package will be final and binding. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Within three days after such determination, Buyer and Seller will file the Form 8023 and the relevant attachments with the IRS in accordance with the procedure described above. Buyer and Seller will file their respective Tax Returns, including IRS Form 8023, in a manner consistent with the finalized Form 8023 Package. (iii) Seller will have the initial responsibility for the timely preparation of the allocation of the Purchase Price plus the amount of accrued liabilities, if any, and all other relevant items (and taking into account any appropriate adjustments under applicable Law), among the assets of the Company (the “Purchase Price Allocation”) and IRS Form 8883, or the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8883, comparable state, local or foreign forms, statements, schedules and information (the “Form 8883”) will be submitted to Buyer for its review no later than 45 days after the Closing Date. Within 30 days after Buyer receives the Form 8883, Buyer will notify Seller of any objections or proposed changes. If Buyer has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will timely file Form 8883 and the relevant attachments with the IRS via certified mail with return receipt requested. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Seller receives notice of objection from Buyer, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8883 will be final and binding. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Seller and Buyer shall: (A) be bound by the Purchase Price Allocation for purposes of determining any Taxes; (B) prepare and file their Tax Returns on a basis consistent with the Purchase Price Allocation; and (C) take no position inconsistent with the Purchase Price Allocation on any applicable Tax Return or in any proceeding before any Governmental Entity or otherwise. In the event that the Purchase Price Allocation is disputed by any Governmental Entity, the Party receiving notice of the dispute shall promptly notify the other Party, and Seller and Buyer agree to use their commercially reasonable efforts to defend such Purchase Price Allocation in any audit or similar proceeding.

Section 338 Election. (ia) Seller and Buyer will make a joint election under Section 338(h)(10) of the Code, and, at the request of Buyer, any corresponding elections under state, local or foreign Tax Law, with respect to the purchase and sale of the Stock equity interests of the Acquired Corporations under this Agreement. Seller will allocate the “aggregate deemed sales sale price” as computed under applicable Treasury Regulations among the Acquired CompaniesCorporations’ assets in accordance with Section 5.12(b)(iii)7.9. Seller and Buyer agree to take all actions necessary or appropriate, including properly completing and executing IRS Form 8023, to make the election under Section 338(h)(10) of the Code and (if requested by Buyer) and any comparable applicable state Law for the Acquired CompaniesEntities. (iib) Buyer will have the initial responsibility for the timely preparation of IRS Form 8023, and the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8023, comparable state, local or foreign forms, statements, schedules and information (the “Form 8023 Package”) will be submitted to Seller for its review no later than 45 90 days after prior to the Closing Datedue date of filing. Within 30 days after Seller receives the Form 8023 Package, Seller will notify Buyer of any objections or proposed changes. If Seller has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will promptly file the Form 8023 and the relevant attachments with the IRS via certified mail with return receipt requested. As soon as practicable thereafter, Seller and Buyer will furnish to each other a photocopy of such certificate of mailing and return receipt. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Buyer receives notice of objection from Seller, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Partythe Arbiter, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ the Arbiter’s determination as to the appropriateness and extent of changes (if any) to the Form 8023 Package will be final and binding. The costs of such accountants’ determination the Arbiter will be borne equally by Buyer and Seller. Within three days after such determination, Buyer and Seller will file the Form 8023 and the relevant attachments with the IRS in accordance with the procedure described above. Buyer and Seller will file their respective Tax Returns, including IRS Form 8023, in a manner consistent with the finalized Form 8023 Package. (iii) Seller will have the initial responsibility for the timely preparation of the allocation of the Purchase Price plus the amount of accrued liabilities, if any, and all other relevant items (and taking into account any appropriate adjustments under applicable Law), among the assets of the Company (the “Purchase Price Allocation”) and IRS Form 8883, or the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8883, comparable state, local or foreign forms, statements, schedules and information (the “Form 8883”) will be submitted to Buyer for its review no later than 45 days after the Closing Date. Within 30 days after Buyer receives the Form 8883, Buyer will notify Seller of any objections or proposed changes. If Buyer has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will timely file Form 8883 and the relevant attachments with the IRS via certified mail with return receipt requested. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Seller receives notice of objection from Buyer, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8883 will be final and binding. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Seller and Buyer shall: (A) be bound by the Purchase Price Allocation for purposes of determining any Taxes; (B) prepare and file their Tax Returns on a basis consistent with the Purchase Price Allocation; and (C) take no position inconsistent with the Purchase Price Allocation on any applicable Tax Return or in any proceeding before any Governmental Entity or otherwise. In the event that the Purchase Price Allocation is disputed by any Governmental Entity, the Party receiving notice of the dispute shall promptly notify the other Party, and Seller and Buyer agree to use their commercially reasonable efforts to defend such Purchase Price Allocation in any audit or similar proceeding.

Section 338 Election. (ia) Seller The parties shall jointly make and Buyer will make a joint election under Section 338(h)(10) of the Code, and, at the request of Buyer, any corresponding elections under state, local or foreign Tax Law, with respect to the purchase and sale of the Stock under this Agreement. Seller will allocate the “aggregate deemed sales price” as computed under applicable Treasury Regulations among the Acquired Companies’ assets in accordance with Section 5.12(b)(iii). Seller and Buyer agree to take all actions necessary or appropriate, including properly completing and executing IRS Form 8023, to make the file an election under Section 338(h)(10) of the Code (and any comparable provisions of state or local tax law set forth on Schedule 15.12(a)-(State Elections) with respect to the purchase of the Shares and, at Closing, the parties shall execute a Form 8023 (if requested by Buyer) or successor form), with all attachments, with respect to each such purchase and comparable applicable state Law for Purchasers shall promptly file such form with the Acquired Companies. relevant tax authorities and submit evidence of the filings to the Sellers. The parties shall cooperate with each other to take all actions necessary and appropriate (ii) Buyer will have the initial responsibility for the timely preparation of IRS Form 8023, and the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8023, comparable state, local or foreign including filing such additional forms, statementsreturns, elections, schedules and information other documents as may be required) to effect and preserve each timely election in accordance with the provisions of Section 1.338(h)(10)-1 of the Treasury Department regulations (or any comparable provisions of state or local tax law) or any successor provisions. In connection with each such election, Purchasers and Sellers shall use their best efforts to prepare their own Form 8883 and agree to the fair market value of each asset class on Form 8883 the (“Final Form 8023 Package”8883”)(or successor form) will on or before the Closing Date, which shall be submitted prepared in a manner reasonably consistent with the allocation of Purchase Price, plus any liabilities deemed assumed for Tax purposes, among the assets of Company set forth on Schedule 15.12(a)-(Allocation). If Purchasers and Sellers are unable to Seller for its review agree on the Final Form 8883 by the Closing Date, Purchasers shall prepare a draft Form 8883 (or successor) and provide such draft Form 8883 to Sellers no later than 45 sixty (60) days after the Closing Date. Within 30 If, within thirty (30) days after Seller receives the receipt of the draft Form 8023 Package8883, Seller will Sellers notify Buyer Purchasers in writing that Sellers disagree with the draft Form 8883, then the parties shall attempt in good faith to resolve their disagreement within the twenty (20) days following Sellers’ notification to Purchasers of any objections or proposed changessuch disagreement; provided, however, that Sellers shall not dispute the draft Form 8883 if, and to the extent that, such draft Form 8883 is reasonably consistent with the allocation set forth in the Schedule 15.12(a)-(Allocation). If Seller has no objections Sellers do not so notify Purchasers within thirty (30) days of receipt of the draft Form 8883, or proposed changes or if Seller and the Buyer agree on the upon resolution of all objections or proposed changesthe disputed items by the parties, Seller and Buyer will promptly file the draft Form 8023 and 8883 shall become the relevant attachments with the IRS via certified mail with return receipt requested. As soon as practicable thereafter, Seller and Buyer will furnish to each other a photocopy of such certificate of mailing and return receiptFinal Form 8883. If Buyer and Seller fail the parties are unable to agree with respect to resolve their disagreement within the twenty (20) days following any objection or proposed change within 20 days after Buyer receives notice of objection from Sellersuch notification by Sellers (the “Twenty Day Period”), then any disputed objection(s) or proposed change(s) will the items remaining in dispute shall be submitted for resolution to ▇▇▇▇▇▇ Capital (the “Allocation Arbitrator”), who shall arbitrate any such dispute. The Allocation Arbitrator shall determine the proper allocation of the Purchase Price among the assets of Company for purposes of preparing the Form 8883. Within thirty (30) days after his or her appointment, the Allocation Arbitrator shall make a national accounting firm reasonably acceptable to each Partyfinal written determination, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8023 Package will shall be final and bindingbinding on the parties. The costs of such accountants’ determination will be borne equally Form 8883 that is prepared by Buyer and Seller. Within three days after such determination, Buyer and Seller will file the Form 8023 and the relevant attachments with the IRS in accordance with the procedure described above. Buyer and Seller will file their respective Tax Returns, including IRS Form 8023, each party in a manner consistent with the finalized Allocation Arbitrator’s determination shall become the Final Form 8023 Package. (iii) Seller will have the initial responsibility for the timely preparation 8883. All fees and expenses of the allocation of Tax Arbitrator in resolving the Purchase Price plus the amount of accrued liabilities, if any, dispute shall be shared equally by Purchasers and all other relevant items (and taking into account any appropriate adjustments under applicable Law), among the assets of the Company (the “Purchase Price Allocation”) and IRS Form 8883, or the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8883, comparable state, local or foreign forms, statements, schedules and information (the “Form 8883”) will be submitted to Buyer for its review no later than 45 days after the Closing Date. Within 30 days after Buyer receives the Form 8883, Buyer will notify Seller of any objections or proposed changes. If Buyer has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will timely file Form 8883 and the relevant attachments with the IRS via certified mail with return receipt requested. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Seller receives notice of objection from Buyer, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8883 will be final and bindingSellers. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Seller and Buyer shall: parties shall (Ai) be bound by the Purchase Price Allocation each such Final Form 8883 for purposes of determining any Taxes; , (Bii) prepare and file their Tax Returns on a basis consistent with the Purchase Price Allocation; each such Final Form 8883, and (Ciii) take no position inconsistent with the Purchase Price Allocation each such Final Form 8883 on any applicable Tax Return or in any proceeding before any Governmental Entity or otherwiseTax authority. In the event that the Purchase Price Allocation any such Final Form 8883 is disputed by any Governmental EntityTax authority, the Party party receiving notice of the such dispute shall promptly notify the other Partyparty hereto of the dispute. (b) Purchasers shall pay to Sellers an amount equal to the Tax Detriment (as hereinafter defined). “Tax Detriment” is the amount determined by Sellers in a manner identical to the method described on Schedule 15.12(b); provided, however, that the Tax Detriment shall not exceed $12,000,000 nor be less than $0. Sellers shall, and Seller shall cause Company to, provide Purchasers with access to all books, records, and Buyer other information (including, all information relating to Sellers’ tax basis in the Share and Company’s tax basis in its assets) necessary to compute the Tax Detriment. If the Final Form 8883 is prepared on or before the Closing Date, Purchasers shall pay to the Sellers the Tax Detriment on the Closing Date. If the Final Form 8883 is not prepared on or before the Closing Date, the Purchasers shall pay to the Sellers an estimated Tax Detriment on the Closing Date as determined by the Sellers in good faith and reasonably consistent with the allocation set forth in the Schedule 15.12(a)-(Allocation) and the Tax Detriment shall be finally determined by the Sellers when the Final Form 8883 is done, or the end of the Twenty Day Period. If the Tax Detriment as finally determined exceeds the estimated Tax Detriment, Purchasers shall pay to Sellers the excess of the Tax Detriment over the estimated Tax Detriment within two (2) days of such final determination. If the estimated Tax Detriment exceeds the Tax Detriment as finally determined, the Sellers shall pay to Purchasers the excess of the estimated Tax Detriment over the Tax Detriment to the Purchasers within two (2) days of such final determination. If Purchasers fail to make full payment to Sellers of an amount equal to the Tax Detriment on the Closing Date, in addition to such payment, Purchasers shall pay to Sellers interest on the amount of such payment at the rate of six percent (6%) per annum from the Closing Date through and including the date of payment. The parties agree that the payment of the Tax Detriment shall be treated as an adjustment to use their commercially reasonable efforts to defend such the Purchase Price Allocation in of the Shares. In addition, Purchasers shall be liable for all state and local Company Taxes, other than Income Taxes payable by the Sellers’ Group, resulting from the election under Code Section 338(h)(10) (or any audit or similar proceedingelections under analogous state and local law provisions).

Section 338 Election. (ia) Seller API 2 and Buyer will CCA shall jointly make a joint an election under Section 338(h)(10) of the Code, and, at Code and the request of Buyer, Treasury Regulations promulgated under the Code (the "TREASURY REGULATIONS") and any corresponding or similar elections under applicable state, local or foreign Tax Lawlaw (collectively, a "SECTION 338(H)(10) ELECTION") with respect to the purchase and sale of the Stock under this Agreement. Seller will allocate the “aggregate deemed sales price” as computed under applicable Treasury Regulations among the Acquired Companies’ assets in accordance with Section 5.12(b)(iii). Seller and Buyer agree to take all actions necessary or appropriate, including properly completing and executing IRS Form 8023, to make the election under Section 338(h)(10) of the Code and (if requested by Buyer) and comparable applicable state Law for the Acquired Companies. (ii) Buyer will have the initial responsibility for the timely preparation of IRS Form 8023, and the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and required information applicable thereto. Such Form 8023, comparable state, local or foreign forms, statements, schedules and information (the “Form 8023 Package”) will be submitted to Seller for its review no later than 45 days after the Closing Date. Within 30 days after Seller receives the Form 8023 Package, Seller will notify Buyer of any objections or proposed changes. If Seller has no objections or proposed changes or if Seller and the Buyer agree on the resolution of all objections or proposed changes, Seller and Buyer will promptly file the Form 8023 and the relevant attachments with the IRS via certified mail with return receipt requested. As soon as practicable thereafter, Seller and Buyer will furnish to each other a photocopy of such certificate of mailing and return receipt. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Buyer receives notice of objection from Seller, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8023 Package will be final and binding. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Within three days after such determination, Buyer and Seller will file the Form 8023 and the relevant attachments with the IRS Shares in accordance with the procedure described above. Buyer provisions of this Section 8.01. (b) CCA and Seller will file their respective Tax ReturnsAPI 2 shall report, including IRS Form 8023in connection with the determination of income, franchise or other taxes measured by net income, the transactions being undertaken pursuant to this Agreement in a manner consistent with the finalized Section 338(h)(10) Election and this Agreement. API 2 shall be responsible for the preparation of two (2) copies of all forms and documents required in connection with the Section 338(h)(10) Election (including Internal Revenue Service Form 8023 Package8023). Once API 2 properly prepares documents and forms as may be required by applicable Tax laws to complete and make properly the Section 338(h)(10) Election and timely delivers two (2) copies of such forms and documents to CCA, CCA shall execute both copies no later than thirty (30) days following receipt of such forms and timely file one (1) copy of such forms and documents with its appropriate federal income Tax Return with the United States Internal Revenue Service and return the other copy to API 2 for timely filing with the Internal Revenue Service District Director or other appropriate official or office. (iiic) Seller will have the initial responsibility for the timely preparation of the allocation of API 2 shall allocate the Purchase Price plus in the amount of accrued liabilities, if any, and all other relevant items (and taking into account any appropriate adjustments under applicable Law), among the assets of the Company (the “Purchase Price Allocation”) and IRS Form 8883, or the comparable form under applicable state, local or foreign Law, and all supporting statements, schedules, and manner required information applicable thereto. Such Form 8883, comparable state, local or foreign forms, statements, schedules and information (the “Form 8883”) will be submitted to Buyer for its review no later than 45 days after the Closing Date. Within 30 days after Buyer receives the Form 8883, Buyer will notify Seller of any objections or proposed changes. If Buyer has no objections or proposed changes or if Seller by Code Section 338 and the Buyer agree on the resolution of regulations thereunder. CCA shall file all objections or proposed changes, Seller and Buyer will timely file Form 8883 and the relevant attachments with the IRS via certified mail with return receipt requested. If Buyer and Seller fail to agree with respect to any objection or proposed change within 20 days after Seller receives notice of objection from Buyer, then any disputed objection(s) or proposed change(s) will be submitted for resolution to a national accounting firm reasonably acceptable to each Party, which will report its final determination to Buyer and Seller within 30 days thereafter, and such accountants’ determination as to the appropriateness and extent of changes (if any) to the Form 8883 will be final and binding. The costs of such accountants’ determination will be borne equally by Buyer and Seller. Seller and Buyer shall: (A) be bound by the Purchase Price Allocation for purposes of determining any Taxes; (B) prepare and file their Tax Returns on and statements in connection therewith in a basis manner consistent with the Purchase Price Allocation; such allocations and (C) shall take no position inconsistent with the Purchase Price Allocation on any contrary thereto unless required to do so by applicable Tax Return laws. CCA shall have the right to review and approve (which approval shall not be unreasonably withheld) any such allocations and any such forms and schedules relating to such allocations, prior to the filing thereof. Any disputes regarding the allocation or in any proceeding before any Governmental Entity the preparation, execution or otherwise. In the event that the Purchase Price Allocation is disputed by any Governmental Entity, the Party receiving notice filing of the dispute shall promptly notify forms and documents required in connection with making the other Party, and Seller and Buyer agree to use their commercially reasonable efforts to defend such Purchase Price Allocation in any audit or similar proceeding.Section 338(h)