Common use of Section 338 Elections Clause in Contracts

Section 338 Elections. (A) The Purchaser and the Seller shall make (or cause to be made) a valid, timely and effective election under Section 338(h)(10) of the Code and Treasury Regulations Section 1.338(h)(10)-1 or Section 338(g) of the Code and Treasury Regulations Section 1.338-2, as applicable, (and any comparable provision of applicable Tax Law) with respect to each Transferred Entity listed in Section 7.09(c)(i) of the Disclosure Letter (collectively, the “Section 338 Elections”) in accordance with applicable Law. The parties acknowledge and agree that the Purchaser shall be permitted in its sole discretion to make (or cause to be made) an election under Section 338(g) of the Code and Treasury Regulations Section 1.338-2 with respect to any foreign Transferred Entity that is not listed in Section 7.09(c)(i) of the Disclosure Letter; provided, that the Purchaser shall notify the Seller of any such election within forty-five (45) days following the Closing Date. (B) No later than ten (10) Business Days prior to the anticipated Closing Date, the Seller shall deliver to the Purchaser for its review and approval (not to be unreasonably withheld, conditioned or delayed) a draft Form 8023 with respect to each applicable Transferred Entity (such forms, the “Tax Election Forms”). (C) If an election under Section 338(g) of the Code is not made with respect to a foreign Transferred Entity pursuant to the Purchaser’s discretion, as described in Section 7.09(c)(i)(A), the Seller may, at its sole discretion, determine to include (or shall cause one or more of its Affiliates to include), with its U.S. federal income Tax Return for the year in which the Closing occurs, an election pursuant to Treasury Regulations Section 1.245A-5(e)(3)(i)(A) to close the Tax year of any Transferred Entity that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code prior to the Closing Date (provided that such election is permitted under applicable Law), and, in such case, the Purchaser shall enter into (or, as appropriate under Treasury Regulations Section 1.245A-5(e)(3)(i)(C), shall cause one or more of its Affiliates to enter into) with the Seller (or an Affiliate of the Seller) a written, binding agreement providing for such an election in accordance with Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) no later than thirty (30) days prior to the due date for any such Tax Return.

Section 338 Elections. (Aa) The At Purchaser’s election (as determined in its sole and absolute discretion), Delpen Corporation and Parent shall join with Purchaser and the Seller shall make (or cause to be made) a valid, timely and effective in making an election under Section 338(h)(10) of the Code and Treasury Regulations Section 1.338(h)(10)-1 or Section 338(g) of the Code and Treasury Regulations Section 1.338-2, as applicable, (and any comparable provision of applicable corresponding election under state and local Tax Law) with respect to each Transferred Entity listed in Section 7.09(c)(i) the sale of the Disclosure Letter shares of Delpen Corporation pursuant to this Agreement (collectivelysuch election, the a “Section 338 Elections338(h)(10) Election”) in accordance with applicable Law). The parties acknowledge and agree that the If Purchaser shall be permitted in its sole discretion elects to make (or cause to be madea Section 338(h)(10) an election under Section 338(g) of the Code and Treasury Regulations Section 1.338-2 with respect to any foreign Transferred Entity that is not listed in Section 7.09(c)(i) of the Disclosure Letter; providedElection, that the Purchaser shall notify Parent of its intention to make such Section 338(h)(10) Election at or prior to the Seller of any such election Closing or within forty-five (45) days following the Closing Date. (B) No later than ten (10) Business Days prior to the anticipated Closing Date. Thereafter, the Seller parties shall deliver cooperate in the prompt completion and timely filing of all forms required for the Section 338(h)(10) Election, with all such forms subject to the Purchaser for its review Purchaser’s review, comment, and approval consent (not to be unreasonably withheld, conditioned conditioned, or delayed) a draft Form 8023 with respect to each applicable Transferred Entity (such forms, the “Tax Election Forms”). (Cb) If an election under For the purpose of making the Section 338(g338(h)(10) Election, on or prior to the Closing Date, Purchaser and Parent each shall execute two copies of the Code is not made with respect IRS Form 8023 (or any successor form) (the “IRS Form 8023”) and Parent shall deliver such duly executed and properly completed forms to a foreign Transferred Entity Purchaser at Closing. Promptly after the Allocation becomes final and binding pursuant to Section 8.1, Purchaser will deliver to Parent drafts of IRS Form 8883 and any similar forms under applicable state Tax Law prepared consistently with the Purchaser’s discretionAllocation, as described and Purchaser shall consider in good faith any comments provided by Parent (any such form, to the extent agreed pursuant to this Section 7.09(c)(i)(A8.11(b), collectively with the Seller mayIRS Form 8023, at its sole discretionthe “Section 338(h)(10) Forms”). If Purchaser elects to make a Section 338(h)(10) Election, determine the Section 338(h)(10) Forms will be duly executed (to include the extent required to make valid any Section 338 Election) by ▇▇▇▇▇▇ and Purchaser and will be timely filed by each party as required by Law. (c) All Tax Returns will be prepared and filed consistently with the Section 338(h)(10) Forms, and Seller, the Transferred Entities and Purchaser and their Affiliates will report the acquisition by Purchaser of the Transferred Entities consistent with the Section 338 Elections and will not take a position contrary thereto or shall cause one inconsistent therewith in any Tax Return, any discussion with or more of its Affiliates Tax proceeding before any Tax authority, or otherwise for Tax purposes, unless required to include), with its U.S. federal income Tax Return for the year in which the Closing occurs, an election pursuant to Treasury Regulations Section 1.245A-5(e)(3)(i)(A) to close the Tax year of any Transferred Entity that is do so by a “controlled foreign corporationdetermination” within the meaning of Section 957(a1313(a)(1) of the Code prior to the Closing Date (provided that such election is permitted under applicable and similar provisions of state, local and non-U.S. Law), and, in such case, the Purchaser shall enter into (or, as appropriate under Treasury Regulations Section 1.245A-5(e)(3)(i)(C), shall cause one or more of its Affiliates to enter into) with the Seller (or an Affiliate of the Seller) a written, binding agreement providing for such an election in accordance with Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) no later than thirty (30) days prior to the due date for any such Tax Return.

Section 338 Elections. (Ai) The Purchaser Parent and the Seller shall make (or cause to be made) Buyer will join in making a validtimely, timely irrevocable and effective election under Section 338(h)(10) of the Code and Treasury Regulations Section 1.338(h)(10)-1 or Section 338(g) of the Code and Treasury Regulations Section 1.338-2, as applicable, (and any comparable similar provision of applicable Tax Lawstate or local law (each, a “Section 338(h)(10) Election”) with respect to each Transferred Entity listed in Section 7.09(c)(iBuyer’s (or an Affiliated Buyer’s) purchase of the Disclosure Letter shares of each Consolidated Domestic Subsidiary (collectivelyand any Subsidiaries of such a Consolidated Domestic Subsidiary for which a Section 338(h)(10) Election can be made). To facilitate such elections, at the Closing, Parent shall deliver to Buyer IRS Forms 8023 and any similar forms under state or local law (each a “Section 338 ElectionsForm 8023”) in accordance with applicable Law. The parties acknowledge and agree that the Purchaser shall be permitted in its sole discretion respect to make Buyer’s (or an Affiliated Buyer’s) purchase of the shares of each Consolidated Domestic Subsidiary, which Forms 8023 shall have been duly executed by authorized persons on behalf of Parent, and Buyer shall cause the Forms 8023 to be madeduly executed by an authorized person for Buyer or an Affiliated Buyer, as applicable. Parent shall cause such Forms 8023 to be filed with the appropriate Taxing Authority as prescribed by Treasury Regulation 1.338(h)(10)-1 or applicable provision under state or local law and shall provide a copy of such Forms 8023, as filed, to Buyer. (ii) If requested by Parent with respect to the Acquired Foreign Corporation, Buyer (or an Affiliated Buyer) shall make a timely and effective election under Section 338(g) of the Code and Treasury Regulations (a “Section 1.338-2 338(g) Election”) with respect to any foreign Transferred Entity that is not listed in Section 7.09(c)(iBuyer’s (or such Affiliated Buyer’s) purchase of the Disclosure Letter; providedshares of such Acquired Foreign Corporation. To facilitate such election, that at the Purchaser shall notify the Seller of any such election within forty-five (45) days following the Closing Date. (B) No later than ten (10) Business Days prior to the anticipated Closing DateClosing, the Seller Parent shall deliver to Buyer an IRS Form 8023 and a notice which meets the Purchaser for its review requirements of Treasury Regulation 1.338-2(e)(4). Buyer shall cause such Form 8023 and approval (not such notice to be unreasonably withheldduly executed by an authorized person for Buyer (or for an Affiliated Buyer, conditioned or delayed) a draft if applicable). Parent shall cause such Form 8023 to be sent for filing with respect to each applicable Transferred Entity (such formsthe appropriate Taxing Authority. Unless so requested by Parent, the “Tax Election Forms”). (C) If an election under no Section 338(g) of the Code is not Election shall be made with respect to a foreign Transferred Entity the Acquired Foreign Corporation. (iii) Parent and Buyer agree (A) to timely file (or cause to be timely filed) all Tax Returns required to be filed with respect to the Section 338(h)(10) Elections and the Section 338(g) Election (if applicable), including IRS Form 8883, (B) to file and to cause their respective Affiliates to file all other Tax Returns consistent with such Section 338(h)(10) Elections and Section 338(g) Election, and (C) not to assert, or cause or permit their Affiliates to assert, in connection with any audit or other proceeding with respect to Taxes, any characterization inconsistent with the Section 338(h)(10) Elections or Section 338(g) Election, as applicable, or any asset values or other items inconsistent with the Final Allocations as determined pursuant to Section 2.9(c) in the Purchaser’s discretion, as described in Section 7.09(c)(i)(A), the Seller may, at its sole discretion, determine to include (or shall cause one or more of its Affiliates to include), with its U.S. federal income Tax Return for the year in which the Closing occurs, an election pursuant to Treasury Regulations Section 1.245A-5(e)(3)(i)(A) to close the Tax year of any Transferred Entity that is a “controlled foreign corporation” within the meaning of Section 957(a) case of the Code prior to Section 338(h)(10) Elections, or Section 2.9(d) in the Closing Date (provided that such election is permitted under applicable Law), and, in such case, the Purchaser shall enter into (or, as appropriate under Treasury Regulations Section 1.245A-5(e)(3)(i)(C), shall cause one or more of its Affiliates to enter into) with the Seller (or an Affiliate case of the SellerSection 338(g) a writtenElection, binding agreement providing for such an election in accordance with Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) no later than thirty (30) days prior to the due date for any such Tax Returnunless otherwise required by applicable Laws.

Section 338 Elections. (Aa) The Purchaser Seller and the Seller Buyer shall make (make, or cause to be made) a valid, timely joint elections for AMLIC and effective election USIC under Section section 338(h)(10) of the Code and Treasury Regulations Section 1.338(h)(10)-1 under any applicable similar provisions of state or Section 338(g) local law in connection with the purchase of the Code and Treasury Regulations Section 1.338-2, New Holdco Units (all such elections being referred to collectively as applicable, (and any comparable provision of applicable Tax Law) with respect to each Transferred Entity listed in Section 7.09(c)(i) of the Disclosure Letter (collectively, the “Section 338 Elections”) in accordance with applicable Law). The parties acknowledge Each of Seller and agree that the Purchaser Buyer shall be permitted in its sole discretion to make (duly execute, or cause to be madeexecuted, IRS Form 8023 (and any comparable form required for purposes of making such elections under state or local law) and such forms shall be delivered to the other party at or prior to the Closing Date. Buyer shall file, or cause to be filed, such forms promptly after the Closing (and with respect to which, Buyer shall provide proof of mailing to Seller). Buyer shall not make an election made under Section 338(g) of the Code and Treasury Regulations Section 1.338-2 with respect to any foreign Transferred Entity that is not listed in Section 7.09(c)(ifor ALOC Holdings without the consent of Seller. (b) of the Disclosure Letter; provided, that the Purchaser shall notify the Seller of any such election within forty-five (45) Within 60 days following the Closing Date. final determination of the Purchase Price pursuant to Section 1.05, Seller shall prepare and deliver to Buyer a schedule (Bthe “Proposed Allocation Schedule”) No later than ten allocating the “aggregate deemed sales price”, as defined in Treasury Regulations section 1.338-4 and the “aggregate grossed up basis”, as defined in Treasury Regulation section 1.338-5, for AMLIC and USIC, in compliance with Treasury Regulations sections 1.338-6, 1.338-7 and 1.338-11, as applicable. If Buyer and Seller are unable to agree on the Section 338 allocation within sixty (1060) Business Days prior days after Seller provides the Proposed Allocation Schedule, Buyer shall provide Seller written notice of the items in dispute, and the parties shall request the Independent Accountant to decide any disputed items within thirty (30) days; provided that (i) the dollar amount of each item in dispute shall be determined within the range of dollar amounts proposed by Buyer in its written notice, on the one hand, and the amount proposed by Seller, on the other hand; (ii) the review by and determinations of the Independent Accountant shall be limited to, and only to, the unresolved item or items specified in Buyer’s written notice; and (iii) the determinations by the Independent Accountant shall be based solely on such reports submitted by Seller and Buyer and the information and documents (including work papers) provided to the anticipated Closing DateIndependent Accountant which form the basis for Seller’s and Buyer’s respective positions, the Seller shall deliver to the Purchaser for its review and approval (not to be unreasonably withheld, conditioned or delayed) a draft Form 8023 with respect to each applicable Transferred Entity (such forms, the “Tax Election Forms”). (C) If an election under Section 338(g) of the Code is not made with respect to a foreign Transferred Entity pursuant to the Purchaser’s discretion, as described in Section 7.09(c)(i)(A), the Seller may, at its sole discretion, determine to include (or shall cause one or more of its Affiliates to include), with its U.S. federal income Tax Return for the year in which the Closing occurstax principles. The Proposed Allocation Schedule, an election as finally determined pursuant to Treasury Regulations this Section 1.245A-5(e)(3)(i)(A) 5.06(b), shall become the “Final Allocation Schedule” and shall be binding upon the parties and each of Buyer and Seller shall file and cause their respective Affiliates to close file all federal, state, and local Tax Returns in accordance with the Tax year of any Transferred Entity that is Final Allocation Schedule unless otherwise required by a “controlled foreign corporationdetermination” within the meaning of Section 957(a) 1313 of the Code prior (or similar state law) to the Closing Date contrary; provided, however, that (provided that such election is permitted under applicable Law), and, in such case, i) the Purchaser shall enter into (or, as appropriate under Treasury Regulations Section 1.245A-5(e)(3)(i)(C), shall cause one or more of its Affiliates to enter into) with the Seller (or an Affiliate deemed purchase prices of the Sellerassets may differ from amounts shown on the Final Allocation Schedule in order to reflect Buyer’s transaction costs not included in the Final Allocation Schedule and (ii) a written, binding agreement providing the amounts realized on the deemed sales of assets may differ from the deemed sales prices shown on the Final Allocation Schedule in order to reflect transaction costs that reduce the amounts realized for such an election in accordance with Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) no later than thirty (30) days prior to the due date for any such federal income Tax Returnpurposes.

Section 338 Elections. (Ai) The Purchaser or an appropriate Affiliate of the Purchaser on the one hand, and the Seller or an appropriate Affiliate of the Seller, on the other hand, shall make (or cause to be madejoin with each other in making the election provided by Sections 338(g) a valid, timely and effective election under Section 338(h)(10) of the Code Code, in accordance with Treasury Regulation Section 1.338(h)(10)-1(c)(2), with respect to any DMS Shares Company or DMS Subsidiary that is a U.S. corporation for U.S. federal income tax purposes and Treasury Regulations that is so designated in Section 1.338(h)(10)-1 or Section 338(g) 4.6(j)-1 of the Code and Treasury Regulations Section 1.338-2Disclosure Schedule, as applicableand, (and any comparable provision of applicable Tax Law) if permissible, similar actual elections or deemed elections with respect to each Transferred Entity listed in Section 7.09(c)(i) of the Disclosure Letter such company under any applicable state or local Tax Laws (collectively, the “"Section 338 Elections”) in accordance with applicable Law"). The parties acknowledge and agree that the Purchaser No Section 338 Elections shall be permitted in its sole discretion to make (or cause to be made) an election under Section 338(g) of the Code and Treasury Regulations Section 1.338-2 made with respect to any foreign Transferred Entity DMS Shares Company or DMS Subsidiary that is not listed so designated in Section 7.09(c)(i) 4.6(j)-2 of the Disclosure Letter; provided, that the Purchaser shall notify the Seller of any such election within forty-five (45) days following the Closing DateSchedule. (Bii) No later than ten (10) Business Days prior to the anticipated Closing Date, the Seller The Section 338 Elections shall deliver to the Purchaser for its review and approval (not to be unreasonably withheld, conditioned or delayed) a draft Form 8023 with respect to each applicable Transferred Entity (such forms, the “Tax Election Forms”). (C) If an election under Section 338(g) of the Code is not made with respect to a foreign Transferred Entity pursuant to the Purchaser’s discretion, as described in Section 7.09(c)(i)(A), the Seller may, at its sole discretion, determine to include (or shall cause on one or more Forms 8023, or any successor Form or Forms, and a draft of its Affiliates each such Form shall be prepared by the Purchaser and delivered by the Purchaser to include)the Seller as promptly as practicable, with its U.S. federal income Tax Return for the year but in which the Closing occurs, an election pursuant to Treasury Regulations Section 1.245A-5(e)(3)(i)(A) to close the Tax year of any Transferred Entity that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code prior to no event later than 30 days after the Closing Date (provided that such election is permitted under applicable Law), and, in such case, the Purchaser shall enter into (Balance Sheets have been finalized or, as appropriate under Treasury Regulations Section 1.245A-5(e)(3)(i)(C)if earlier, shall cause one or more of its Affiliates to enter into) with the Seller (or an Affiliate of the Seller) a written, binding agreement providing for such an election in accordance with Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) no later than thirty (30) 120 days prior to the due date for timely filing such Forms 8023. Within 30 days after the Purchaser delivers the draft of each such Form 8023 to the Seller, the Seller shall notify the Purchaser of the existence of any objection that the Seller may have to the draft of each such Form 8023. The Purchaser and the Seller shall promptly endeavor in good faith to resolve any such Tax Return.objection. The Purchaser shall deliver to the Seller a copy of the final version of each such Form 8023 within 30 days after the later of (A) the date on which the Purchaser and the Seller shall have resolved any objections or (B) the failure of the Seller to notify the Purchaser of an objection within 30 days. The Seller shall return each such final Form 8023 after having been endorsed by the Seller or its appropriate Affiliate to the Purchaser no later than ten days after the Purchaser shall have delivered each such final Form 8023 to the Seller. The Purchaser shall file each such Form 8023 with the Internal Revenue Service in accordance with Treasury Regulation Section 1.338(h)(10)-1(c)