Common use of Section 338 Elections Clause in Contracts

Section 338 Elections. (i) Notwithstanding anything in this Section 7.8 to the contrary, prior to the date that is sixty (60) days after the Closing Date, Purchaser shall notify Parent in writing of its determination to (1) waive its right to make any elections under Section 338(h)(10) of the Code (and any comparable election under state or local Law) with respect to the acquisition of any Transferred Entity domiciled in the United States that is a corporation for U.S. federal income Tax purposes (each, a “Section 338(h)(10) Election”) or any elections under Section 338(g) of the Code (and any comparable election under state or local Law) with respect to the acquisition of any Transferred Entity domiciled outside of the United States that is a corporation for U.S. federal income Tax purposes (each, a “Section 338(g) Election”, and, together with any Section 338(h)(10) Election, the “Section 338 Elections”) or (2) affirm that it intends to make any Section 338(h)(10) Election or Section 338(g) Election. If Purchaser elects to make any Section 338(h)(10) Election, then Parent and Purchaser shall each execute an IRS Form 8023 and any similar state or local forms to jointly make and effectuate such Section 338(h)(10) Election and otherwise reasonably cooperate in making the Section 338(h)(10) Election. (ii) If Purchaser elects to make any Section 338 Election pursuant to the terms of Section 7.8(c)(i) with respect to any Transferred Entity, then, notwithstanding anything to the contrary in this Agreement, Purchaser shall promptly (and no later than five (5) days) after the final determination of the Gross Up Notice pursuant to Section 7.8(c)(iii) pay to Parent by wire transfer of immediately available funds an amount in cash equal to (1) the excess, if any, of (A) the total amount of all U.S. federal, state and local income Taxes imposed upon Parent or its Affiliates solely by reason of the deemed sale of the Transferred Entity’s assets and the deemed liquidation of the Transferred Entity as a result of the Section 338 Election, over (B) the total amount of all U.S. federal, state and local income Taxes which would have been required to have been paid by Parent and its Affiliates upon any gain Parent and its Affiliates would have recognized with respect to the sale of the applicable Shares to Purchaser if the Section 338 Election had not been made, as determined on a “with and without” basis, and without regard to any tax attributes other than tax attributes that (I) would have been utilized absent the Section 338 Election or (II) are allocable to the Transferred Entities on a standalone basis (the “Section 338 Gross Up”). (iii) Parent shall initially calculate the Section 338 Gross Up amount consistent with the Allocation Schedule and provide such calculation, together with a statement describing in reasonable detail the manner in which such computation was made (the “Gross Up Notice”), to Purchaser no later than fifteen (15) days following the finalization of the Allocation Schedule pursuant to Section 7.12. The Gross Up Notice shall be final and binding on all parties unless, within thirty (30) days after delivery thereof to Purchaser, Purchaser delivers a written notice to Parent of Purchaser’s objections to the Gross Up Notice. Parent and Purchaser shall use reasonable efforts to resolve any disputed items on the Gross Up Notice, provided that if Parent and Purchaser cannot come to a mutual agreement on the Gross Up Notice, the matter shall be resolved in accordance with the procedures set forth in Section 7.12.

Section 338 Elections. (i) Notwithstanding anything in this Section 7.8 to Buyer and the contrary, prior to the date that is sixty (60) days after the Closing Date, Purchaser Company shall notify Parent in writing of its determination to (1) waive its right to jointly make any elections an election under Section 338(h)(10) of the Code (and any comparable election under state or local tax Law) with respect to the acquisition of any Transferred Entity domiciled in the each Fleet Subsidiary that is classified as a domestic corporation for United States that is a corporation for U.S. federal income Tax purposes (each, a the “Section 338(h)(10) ElectionElections”). (ii) A copy of the executed IRS Form 8023 indicating the consent of Buyer and the Company to each Section 338(h)(10) Election is attached hereto as Exhibit E. The Company authorizes Buyer to, and promptly after the Closing Date Buyer shall, (1) complete such IRS Form 8023 by entering relevant information regarding the Fleet U.S. Buyer in Section A-1 of such form and entering the Closing Date on line 5a of such form and adjacent to the signature of the authorized person for the Company and (2) file such form with the IRS on behalf of Buyer and the Company. Following such completion and filing, Buyer shall provide the Company with a copy of such completed IRS Form 8023. Buyer and the Company shall, and shall cause their respective Affiliates to, cooperate in good faith in the preparation, execution and timely filing of IRS Form 8883 and all other Section 338 Forms, including by providing Buyer with such information as Buyer reasonably requests in order to prepare such Section 338 Forms. (iii) As used in this Agreement, “Section 338 Forms” means all tax returns that are required to be submitted to any Federal, state, county or other local Governmental Authority in connection with the Section 338(h)(10) Elections. Section 338 Forms include any “statement of section 338 election” and IRS Form 8023 (together with any schedules or attachments thereto) that are required under U.S. Treasury Regulation Section 1.338-1 or U.S. Treasury Regulation Section 1.338(h)(10)-1 or any elections successor provisions. (iv) Buyer and its Affiliates shall be entitled to make an election under Section 338(g) of the Code (and any comparable election under state or local Law) with respect to the acquisition of any Transferred Entity domiciled outside of the United States that is a corporation for U.S. federal income Tax purposes (each, a “Section 338(g) Election”, and, together with any Section 338(h)(10) Election, the “Section 338 Elections”) or (2) affirm that it intends to make any Section 338(h)(10) Election or Section 338(g) Election. If Purchaser elects to make any Section 338(h)(10) Election, then Parent and Purchaser shall each execute an IRS Form 8023 and any similar state or local forms to jointly make and effectuate such Section 338(h)(10) Election and otherwise reasonably cooperate in making the Section 338(h)(10) Election. (ii) If Purchaser elects to make any Section 338 Election pursuant to the terms of Section 7.8(c)(i) with respect to any Transferred Entity, then, notwithstanding anything to the contrary in this Agreement, Purchaser shall promptly (and no later than five (5) days) after the final determination of the Gross Up Notice Canadian Fleet Subsidiary acquired pursuant to Section 7.8(c)(iii) pay to Parent by wire transfer of immediately available funds an amount in cash equal to (1) the excess, if any, of (A) the total amount of all U.S. federal, state and local income Taxes imposed upon Parent or its Affiliates solely by reason of the deemed sale of the Transferred Entity’s assets and the deemed liquidation of the Transferred Entity this Agreement that is treated as a result of the Section 338 Election, over (B) the total amount of all U.S. federal, state and local corporation for United States federal income Taxes which would have been required to have been paid by Parent and its Affiliates upon any gain Parent and its Affiliates would have recognized with respect to the sale of the applicable Shares to Purchaser if the Section 338 Election had not been made, as determined on a “with and without” basis, and without regard to any tax attributes other than tax attributes that (I) would have been utilized absent the Section 338 Election or (II) are allocable to the Transferred Entities on a standalone basis (the “Section 338 Gross Up”)Tax purposes. (iii) Parent shall initially calculate the Section 338 Gross Up amount consistent with the Allocation Schedule and provide such calculation, together with a statement describing in reasonable detail the manner in which such computation was made (the “Gross Up Notice”), to Purchaser no later than fifteen (15) days following the finalization of the Allocation Schedule pursuant to Section 7.12. The Gross Up Notice shall be final and binding on all parties unless, within thirty (30) days after delivery thereof to Purchaser, Purchaser delivers a written notice to Parent of Purchaser’s objections to the Gross Up Notice. Parent and Purchaser shall use reasonable efforts to resolve any disputed items on the Gross Up Notice, provided that if Parent and Purchaser cannot come to a mutual agreement on the Gross Up Notice, the matter shall be resolved in accordance with the procedures set forth in Section 7.12.

Section 338 Elections. (ia) Notwithstanding anything in this Section 7.8 to the contraryParent and Purchaser shall, prior to the date that is sixty (60) days after the Closing Dateor shall cause their relevant Affiliates to, Purchaser shall notify Parent in writing of its determination to (1) waive its right to jointly make any elections a timely and irrevocable election under Section 338(h)(10) of the Code (and any comparable election corresponding elections under any applicable state or local Tax Law) with respect to the acquisition of any Transferred Entity domiciled in the United States that is a corporation for U.S. federal income Tax purposes Section 338(h)(10) Subsidiaries (eachcollectively, a the “Section 338(h)(10) Election”) or any elections under Section 338(g) of the Code (and any comparable election under state or local Law) with respect to the acquisition of any Transferred Entity domiciled outside of the United States that is a corporation for U.S. federal income Tax purposes (each, a “Section 338(g) Election”, and, together with any Section 338(h)(10) Election, the “Section 338 Elections”) or (2) affirm that it intends to make any Section 338(h)(10) Election or Section 338(g) Election. If Purchaser elects to make any Section 338(h)(10) Election, then Parent and Purchaser shall each execute an IRS Form 8023 and any similar state or local forms to jointly make and effectuate such Section 338(h)(10) Election and otherwise reasonably cooperate in making the Section 338(h)(10) Election. (ii) If Purchaser elects to make any Section 338 Election pursuant to the terms of Section 7.8(c)(i) with respect to any Transferred Entity, then, notwithstanding anything to the contrary in this Agreement, Purchaser shall promptly (and no later than five (5) days) after the final determination of the Gross Up Notice pursuant to Section 7.8(c)(iii) pay to Parent by wire transfer of immediately available funds an amount in cash equal to (1) the excess, if any, of (A) the total amount of all U.S. federal, state and local income Taxes imposed upon Parent or its Affiliates solely by reason of the deemed sale of the Transferred Entity’s assets and the deemed liquidation of the Transferred Entity as a result of the Section 338 Election, over (B) the total amount of all U.S. federal, state and local income Taxes which would have been required to have been paid by Parent and its Affiliates upon any gain Parent and its Affiliates would have recognized with respect to the sale of the applicable Shares to Purchaser if the Section 338 Election had not been made, as determined on a “with and without” basis, and without regard to any tax attributes other than tax attributes that (I) would have been utilized absent the Section 338 Election or (II) are allocable to the Transferred Entities on a standalone basis (the “Section 338 Gross Up”). (iiib) Parent and Purchaser shall initially calculate cooperate in the preparation of all forms, attachments and schedules necessary to effectuate the Section 338 Gross Up amount 338(h)(10) Elections, including IRS Forms 8023 and 8883 and any similar forms under applicable state and local income Tax Laws (collectively, the “Section 338(h)(10) Forms”) in a manner consistent with the Allocation Schedule Allocation. Parent and provide Purchaser shall, or shall cause their relevant Affiliates to, timely file such calculationSection 338(h)(10) Forms with the applicable taxing authorities. Parent and Purchaser agree that neither of them shall, together with a statement describing in reasonable detail or shall permit any of their Affiliates to, revoke the manner in which such computation was made (the “Gross Up Notice”), to Purchaser no later than fifteen (15Section 338(h)(10) days Elections following the finalization filing of the Allocation Schedule pursuant to Section 7.12. The Gross Up Notice shall be final and binding on all parties unless338(h)(10) Forms without the prior written consent of Purchaser or Parent, within thirty (30) days after delivery thereof to Purchaser, Purchaser delivers a written notice to Parent of Purchaser’s objections to as the Gross Up Noticecase may be. Parent and Purchaser shall use reasonable efforts and shall cause their Affiliates to resolve (i) file all Tax Returns in a manner consistent with the Section 338(h)(10) Elections, the Section 338(h)(10) Forms and the Allocation and (ii) take no position contrary thereto in connection with any disputed items on the Gross Up Notice, provided that if Tax Proceeding or otherwise. (c) Each of Parent and Purchaser cannot come shall deliver to a mutual agreement on the Gross Up Notice, other Party at Closing one or more duly executed IRS Forms 8023 that reflect the matter shall be resolved in accordance with the procedures set forth in Section 7.12.338(h)(10)