Common use of Section 338 Election Clause in Contracts

Section 338 Election. Buyer reserves the right to make an election under Section 338(g) of the Code ("Section 338 Election”) with respect to each Acquired Entity and Seller Parties agree to provide whatever assistance reasonably required by Buyer to determine whether such election may be made. Notwithstanding anything in this Agreement to the contrary, if any Section 338 Election is made, Buyer shall indemnify and hold harmless the Sellers and shall pay the amount, if any, that the Adjusted Seller Taxes exceed the Base Seller Taxes (“Additional Taxes”). The “Adjusted Seller Taxes” is defined herein as the aggregate amount of Taxes that Sellers, the Acquired Entities and their Subsidiaries are required to pay or otherwise be responsible for paying or indemnifying Buyer under this Agreement (but for this indemnification for Additional Taxes) if a Section 338 Election is made, including any additional Taxes resulting from Buyer’s indemnification or payment to Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make a Section 338 Election. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a Section 338 Election (i.e. sale of the underlying assets) or without a Section 338 Election (i.e. sale of the Shares), as the case may be, and shall not take into consideration and shall otherwise ignore any post-acquisition Tax benefits that may be derived or lost by any of the Acquired Entities or their Subsidiaries as a result of the Transactions with or without any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis in the underlying assets of any such entities.

Section 338 Election. Sellers acknowledge that Buyer reserves will have the right option to make an election under Section 338(g) 338 of the Code ("Section 338 Election”) with respect to each Acquired Entity and Seller Parties agree the transactions contemplated by this Agreement. If Buyer exercises its option to provide whatever assistance reasonably required by Buyer to determine whether make such election may be made. Notwithstanding anything in this Agreement to the contrary, if any Section 338 Election is madeelection, Buyer shall will indemnify and hold harmless the Sellers each Seller from and shall pay the amount, if any, that the Adjusted Seller Taxes exceed the Base Seller against any additional Taxes (including Taxes paid as a result of such indemnification) paid by such Seller in respect of the acquisition of such Seller’s Shares as a result of Buyer’s determination to make such election (the “Additional Taxes”). The “Adjusted Seller Taxes” is defined herein as the aggregate amount Promptly after Buyer’s determination to make such election, Buyer shall deliver to Sellers its calculation of Taxes that Sellers, the Acquired Entities and their Subsidiaries are required to pay or otherwise be responsible for paying or indemnifying Buyer under this Agreement (but for this indemnification for Additional Taxes) if a Section 338 Election is made, including any additional Taxes resulting from . If Sellers object to Buyer’s indemnification calculation of Additional Taxes, Buyer shall promptly meet with Sellers and endeavor to reach agreement on the calculation of Additional Taxes within 30 days after Sellers’ receipt of Buyer’s calculation. Any such agreement or payment to objection by Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make shall be determined by a Section 338 Election. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a Section 338 Election (i.e. sale vote of the underlying assets) or without a Section 338 Election (i.e. sale majority of the Shares), as with such numbers to be determined by reference to the case may bedate that is immediately prior to the date of this Agreement. If at any time Sellers and Buyer agree in writing on the calculation of Additional Taxes, such calculation shall automatically be final and conclusive. If Sellers and Buyer disagree on the amount of Additional Taxes, and are unable to reach agreement on the amount of Additional Taxes within such 30 days, Buyer and Sellers shall immediately retain an independent certified public accounting firm, mutually selected and who has not take into consideration provided material services to Buyer, the Target or any Seller during the previous two years, to resolve the dispute on the calculation of Additional Taxes as soon as reasonably possible. The resolution of all open issues on the calculation of Additional Taxes by such independent certified public accounting firm shall be final and binding on Sellers and Buyer. All fees and disbursements of such independent certified public accounting firm shall otherwise ignore any post-acquisition Tax benefits that may be derived or lost paid by any of the Acquired Entities or their Subsidiaries as a result of the Transactions with or without any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis party found by such independent certified public accounting firm to be in the underlying assets greatest error with respect to their position on the calculation of any Additional Taxes or, if no such entitiesfinding is made by such independent certified public accounting firm, paid evenly by the Buyer, on the one hand, and Sellers, on the other, with such amounts from Sellers to be paid pro rata in accordance with the allocations set forth on Schedule 1.5(b).

Section 338 Election. Buyer reserves The Purchaser and the right to Seller shall duly and -------------------- timely make an election simultaneous joint elections under Section 338(g338(h)(10) of the Code ("Section 338 Election”and Treasury regulation 1.338(h)(10) -1(d) and under any comparable provisions of any applicable state and local tax laws) with respect to each Acquired Entity the purchase of the Shares. The parties understand and agree that, as a result of such elections, the purchase of the Shares will be treated for U.S. federal income tax purposes as if the Company had sold all of its respective assets in a single transaction on the Closing Date, with the result that the tax consequences of such "deemed sale" of assets shall be required to be included in the final Federal S corporation income tax return of the Company. Allocation of the Purchase Price (and other amounts) among such assets shall be made at the Purchaser's discretion. In addition, all forms and other documents (and accompanying schedules thereto, including schedules reflecting the allocation of the purchase price to such assets) required to be filed in order to make such elections shall be prepared by the Seller Parties and approved by the Purchaser. The Purchaser shall file all such executed forms with the applicable tax authorities. The Purchaser and the Seller agree to provide whatever assistance reasonably required by Buyer to determine whether act in accordance with such election may be madeallocations for all purposes (including all Tax and financial accounting purposes). Notwithstanding anything in this Agreement to the contrary, if any provisions of Section 338 Election is made, Buyer shall indemnify and hold harmless the Sellers and shall pay the amount, if any, that the Adjusted Seller Taxes exceed the Base Seller Taxes (“Additional Taxes”). The “Adjusted Seller Taxes” is defined herein as the aggregate amount of Taxes that Sellers12.2.1, the Acquired Entities and their Subsidiaries are required to pay or otherwise Purchaser shall be responsible for paying or indemnifying Buyer under this Agreement (but for this indemnification for Additional Taxes) if a Section 338 Election is made, including any the additional Taxes resulting incurred by the Seller and/or the Company as a result of such elections on a "grossed up" basis, so that such elections will result in no net increase in Seller's Tax Liability arising from Buyer’s indemnification or payment to Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make a Section 338 Election. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a Section 338 Election (i.e. sale of the underlying assets) or without a Section 338 Election (i.e. his sale of the Shares). The Purchaser shall also reimburse the Seller for reasonable professional fees on a grossed up basis, as if applicable, incurred by Seller related to the case may be, and 338 election. All such payments shall not take into consideration and shall otherwise ignore any post-acquisition Tax benefits that may be derived or lost made by any Purchaser to Seller when requested by Seller upon completion of the Acquired Entities work performed or their Subsidiaries as a result of when the Transactions with or without Taxes become due to allow Seller to make payment when due. The Purchaser will indemnify Seller for any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis in the underlying assets of any Damages incurred by Seller if such entitieselections are challenged.

Section 338 Election. Sellers shall provide such cooperation and assistance as Buyer reserves the right may reasonably request, from time to make time, with respect to Buyer Cdn making an election under Code Section 338(g) of the Code (and any corresponding election under U.S. state or local law) (collectively, a "Section 338 Election”") with respect to each Acquired Entity and Seller Parties agree to provide whatever assistance reasonably required the purchase by Buyer to determine whether Cdn of the capital stock of PTH or PTGH hereunder. If Buyer Cdn makes such election may be made. Notwithstanding anything in this Agreement to the contrary, if any Section 338 Election is madeElection, Buyer shall indemnify and hold harmless pay to each Seller the Sellers and shall pay the amountamount of consideration, if any, necessary to cause such Seller's net proceeds from the sale of the capital stock of PTH or PTGH hereunder, as the case may be, to be equal to the after-Tax net proceeds that such Seller would have received had such Section 338 Election not been made, taking into account all appropriate federal, state, local and foreign Tax implications (the Adjusted Seller Taxes exceed the Base Seller Taxes (“Additional Taxes”"Tax Adjustment"). The “Adjusted Sellers' Representative shall provide Buyer with a schedule computing the amount of the Tax Adjustment within 20 days after Buyer has informed it in writing that Buyer Cdn has made such Section 338 Election. In making such calculations, the highest applicable federal, state, local or foreign income tax rates applicable to each Seller Taxes” is defined herein as based on (a) such Seller's character (e.g., natural person, corporation, etc.), (b) county and state or province of residence, and (c) character of the income recognized, shall be used. Buyer shall have 15 Business Days to consider such schedule and, if it disagrees with the calculation, the procedure for resolving disagreements set forth at Section 2.2.4.3 shall be followed. Buyer shall pay to Sellers' Representative on behalf of the respective Sellers the aggregate amount of Taxes that Sellers, the Acquired Entities and their Subsidiaries are required to pay or otherwise be responsible Tax Adjustment for paying or indemnifying Buyer under this Agreement (but each Seller within 15 Business Days after the Tax Adjustment for this indemnification for Additional Taxes) if a Section 338 Election is made, including any additional Taxes resulting from Buyer’s indemnification or payment to all Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise has been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make a Section 338 Electionfinally determined. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a no election under Code Section 338 Election (i.e. sale or any similar election under state, local or non-US law, shall be made with respect to the acquisition of AAI and APH under this Agreement without the underlying assets) or without a Section 338 Election (i.e. sale prior written consent of the Shares)Sellers' Representative, as the case may be, and shall not take into consideration and shall otherwise ignore any post-acquisition Tax benefits that which consent may be derived or lost by any of the Acquired Entities or their Subsidiaries as a result of the Transactions with or without any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis withheld in the underlying assets of any such entitiesSellers' Representative's sole and absolute discretion.

Section 338 Election. Buyer reserves the right to make an election under Section 338(g) of the Code ("“Section 338 Election”) with respect to each Acquired Entity and Seller Parties agree to provide whatever assistance reasonably required by Buyer to determine whether such election may be made. Notwithstanding anything in this Agreement to the contrary, if any Section 338 Election is made, Buyer shall indemnify and hold harmless the Sellers and shall pay the amount, if any, that the Adjusted Seller Taxes exceed the Base Seller Taxes (“Additional Taxes”). The “Adjusted Seller Taxes” is defined herein as the aggregate amount of Taxes that Sellers, the Acquired Entities and their Subsidiaries are required to pay or otherwise be responsible for paying or indemnifying Buyer under this Agreement (but for this indemnification for Additional Taxes) if a Section 338 Election is made, including any additional Taxes resulting from Buyer’s indemnification or payment to Sellers Parties pursuant to this Section 4.12. The “Base Seller Taxes” is defined as the aggregate amount of Taxes that Sellers the Acquired Entities and their Subsidiaries would have paid or otherwise been responsible for paying or indemnifying Buyer under this Agreement if Buyer did not elect to make a Section 338 Election. For the avoidance of doubt, the definitions of Adjusted Seller Taxes and Base Seller Taxes shall take into consideration only such Taxes from recognized gains, revenues or losses directly resulting from engaging in the Transactions with a Section 338 Election (i.e. sale of the underlying assets) or without a Section 338 Election (i.e. sale of the Shares), as the case may be, and shall not take into consideration and shall otherwise ignore any post-acquisition Tax benefits that may be derived or lost by any of the Acquired Entities or their Subsidiaries as a result of the Transactions with or without any Section 338 Election, including, but not limited to, any increased, lost or reduced deductions (through depreciation, amortization or otherwise), gains or losses, as the case may be, from any stepped-up or retained basis in the underlying assets of any such entities.