Related to Section 338 of the Code
Section 280G of the Code Notwithstanding anything contained in this Agreement to the contrary, if the Executive would receive (a) any payment, deemed payment or other benefit as a result of the operation of Section 8 hereof that, together with any other payment, deemed payment or other benefit the Executive may receive under any other plan, program, policy or arrangement (collectively with the payments under Section 8 hereof, the “Covered Payments”), would constitute an “excess parachute payment” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) that would be or become subject to the tax (the “Excise Tax”) imposed under Section 4999 of the Code or any similar tax that may hereafter be imposed, and (b) a greater net after-tax benefit by limiting the Covered Payments so that the portion thereof that are parachute payments do not exceed the maximum amount of such parachute payments that could be paid to the Executive without the Executive’s being subject to any Excise Tax (the “Safe Harbor Amount”), then the Covered Payments to the Executive shall be reduced (but not below zero) so that the aggregate amount of parachute payments that the Executive receives does not exceed the Safe Harbor Amount. In the event that the Executive receives reduced payments and benefits hereunder, such payments and benefits shall be reduced in connection with the application of the Safe Harbor Amount in the following manner: first, the Executive’s Severance Payment under Section 8(a)(ii) shall be reduced, followed by, to the extent necessary and in order, (i) any COBRA Reimbursements or Alternative Payments under Section 8(a)(iii); (ii) the vesting of the Unvested Shares under Section 8(a)(iv); and (iii) the Accrued Obligations under Section 8(a)(i). For purposes of determining whether any of the Covered Payments will be subject to the Excise Tax, such Covered Payments will be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the good faith judgment of a public accounting firm appointed by the Company prior to the change in control or tax counsel selected by such accounting firm (the “Accountants”), the Company has a reasonable basis to conclude that such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for personal services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the allocable portion of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax, and the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code.
Section 409A of the Code Notwithstanding anything herein to the contrary, if at the time of the Executive’s termination of employment with the Company, the Company has determined that the Executive is a “specified employee” as defined in Section 409A of the Code and any severance payments and benefits to Executive are considered a “deferral of compensation” under Section 409A of the Code (the “Deferred Payments”), such Deferred Payments that are otherwise payable within the first six months following the Termination Date will become payable on the first business day of the seventh month following the Executive’s Termination Date, or if earlier the date of the Executive’s death. In the event that payments under this Agreement are deferred pursuant to this Section 14(h), then such payments shall be paid at the time specified in this Section 14(h) without interest. The Company shall consult with the Executive in good faith regarding the implementation of the provisions of this Section 14(h) provided, that neither the Company nor any of its employees or representatives shall have any liability to the Executive with respect thereto. Any amount under this Agreement that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Payments for purposes of this Agreement. Any amounts scheduled for payment hereunder when they are ordinarily paid out or when they are made to other executive officers, will nonetheless be paid to Executive on or before March 15th of the year following the year when the payment is no longer subject to a substantial risk of forfeiture. For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments, and references herein to the Executive’s termination of employment shall refer to Executive’s separation of services with the Company within the meaning of Section 409A of the Code. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code: (x) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (y) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred, and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
Section 754 Elections The Company shall make, and shall cause any Subsidiary of the Company that is treated as a partnership for U.S. federal income tax purposes to make, a timely election under Section 754 of the Code (and a corresponding election under state and local law) effective starting with the taxable year ended December 31, 2018, and the Managing Member shall not take any action to revoke such elections.
Section 338 Election a) Parent agrees to join the Purchaser in making an election under Section 338(g) and 338(h)(10) of the Code, and under any comparable provisions of state, local or non-U.S. Tax Law, with respect to the sale of the Company to the Purchaser. On or prior to the Closing Date, Parent shall duly execute (or cause to be duly executed by the appropriate Subsidiary or Affiliate), and shall deliver to the Purchaser, IRS Form 8023 (or successor form), and any comparable forms that are required by applicable state, local or non-U.S. Tax Laws, for purposes of making the elections contemplated by this Section 7.07. Parent shall provide the Purchasers with reasonable cooperation in the preparation and filing of any and all such elections (and in taking all steps necessary to effectuate the same). In accordance with Section 7.01 hereof, Parent agrees to indemnify the Purchaser, its Subsidiaries, the Company or SAP Thai against all Taxes relating to such elections. (b) For purposes of making the elections required by paragraph (a) of this Section 7.07, the Purchaser shall determine the value of the tangible and intangible assets of the Company and shall provide Parent with a proposed allocation of the Purchaser's "adjusted grossed-up basis" in the Company Shares (within the meaning of the Treasury Regulations under Section 338 of the Code) to such assets within 15 days of the due date for the filing of the election under Section 338(g) and Section 338(h)(10) of the Code with respect to the sale of the Company Shares to the Purchaser (the "Allocation"). For purposes of allocating the "deemed selling price" (within the meaning of the Treasury Regulations under Section 338 of the Code) among the assets of the Company, (i) if all disputes regarding the proposed Allocation are resolved by the parties on or prior to the due date for the filing of the election under Section 338(g) and Section 338(h)(10) of the Code with respect to the sale of the Company Shares to the Purchaser, then the agreed-to Allocation shall be binding upon the Purchaser and Parent, and (ii) if the parties are unable to resolve all disputes regarding the proposed Allocation, then the Allocation shall be considered binding upon the Purchaser and Parent with respect to any items which are not in dispute, and each of Purchaser and Parent shall be responsible for determining its treatment of any disputed items. In any case, appropriate adjustments shall be made to the Allocation to reflect any Purchase Price adjustments pursuant to this Agreement or adjustments required by Law.
The Code The "Code" shall mean the Internal Revenue Code of 1986, as amended (the "Code").
Section 754 Election In its capacity as the sole managing member of the LLC, the Corporation will ensure that, on and after the date hereof and continuing throughout the term of this Agreement, the LLC and each of its direct and indirect Subsidiaries that is treated as a partnership for U.S. federal income tax purposes will have in effect an election under Section 754 of the Code (and under any similar provisions of applicable U.S. state or local law).
Section 338(h)(10) Election (a) At the request and direction of Purchaser, Seller shall make joint elections with Purchaser and file elections under Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-United States Tax law) with respect to the purchase of the Companies and Transferred Subsidiaries and, at Closing, the parties shall execute a Form 8023 (or successor form), with all attachments, with respect to each such purchase. The parties shall cooperate with each other to take all actions necessary and appropriate (including filing such additional forms, returns, elections, schedules and other documents as may be required) to effect and preserve each timely election in accordance with the provisions of Treasury Regulation § 1.338(h)(10)-1 (or any comparable provisions of state, local or non-United States Tax law) or any successor provisions. In connection with each such election, Seller shall prepare a draft Form 8883 (or successor form) and provide such draft Form 8883 to Purchaser no later than ninety (90) days prior to the due date of such Form 8883. If, within thirty (30) days after the receipt of the draft Form 8883, Purchaser notifies Seller in writing that Purchaser disagrees with the draft Form 8883, then the parties shall attempt in good faith to resolve their disagreement within the twenty (20) days following Purchaser’s notification to Seller of such disagreement. If Purchaser does not so notify Seller within thirty (30) days of receipt of the draft Form 8883, or upon resolution of the disputed items by the parties the draft Form 8883 shall become the “Final Form 8883”. If the parties are unable to resolve their disagreement within the twenty (20) days following any such notification by Purchaser, then the parties shall submit all such disputed items for resolution to the Independent Accounting Firm, whose decision shall be final and binding upon all persons involved and whose fees and expenses shall be borne equally by the parties. The Form 8883 delivered by the Independent Accounting Firm shall be the “Final Form 8883”. The parties shall act in good faith to cause the Independent Accounting Firm to deliver the Final Form 8883 within twenty (20) days after such submission. Other than to the extent Purchaser’s purchase price, as determined for federal income tax purposes, differs from the amount shown on the Final Form 8883, the parties shall (i) be bound by each such Final Form 8883 for purposes of determining any Taxes and (ii) prepare and file their Tax Returns on a basis consistent with each such Final Form 8883. The Purchase Price allocation pursuant to the Final Form 8883 shall be appropriately adjusted if and when any purchase price adjustments are made pursuant to Section 9.1(f) of this Agreement. No later than fifteen (15) days prior to the date such Form 8883 and any related documentation are required to be filed under the applicable laws, Seller shall execute and deliver to Purchaser the Final Form 8883. (b) If, at the request of Purchaser, Seller makes joint elections with Purchaser and files elections under Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-United States Tax law) with respect to the purchase of the Companies and Transferred Subsidiaries, Purchaser and Seller (i) shall report the acquisition of the Companies and Transferred Subsidiaries by Purchaser in a manner consistent with the making of the Section 338(h)(10) election and (ii) shall not take a position in any Tax Return that is inconsistent with the Section 338(h)(10) election. Seller shall be responsible for and shall pay any income, franchise or similar Taxes arising as a result of any election under Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-United States Tax law).
Tax Allocations: Code Section 704(c In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any Property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Unit Holders so as to take account of any variation between the adjusted basis of such Property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of Gross Asset Value). In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder. Any elections or other decisions relating to such allocations shall be made by the Directors in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 3.7 are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Unit Holder’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.
Section 355 Neither Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in connection with a distribution described in Section 355 of the Code.
Code Section 754 Adjustments To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.