Common use of Section 338 Clause in Contracts

Section 338. (i) Upon a written request of the Acquiror, notifying the Seller of Acquiror’s intent to make a Section 338(h)(10) Election with respect to the Company that is provided to Seller within ninety (90) days after the Closing Date, the Seller, and the Acquiror, in respect of the Company and the Transferred Subsidiaries, shall take all actions necessary and appropriate (including timely filing all forms, Tax Returns, elections, schedules and other documents as may be required) to effect and preserve a timely section 338(g) or section 338(h)(10) election in accordance with and to the extent permitted by the requirements of section 338 of the Code and U.S. Treasury Regulations promulgated thereunder (and any corresponding elections under state, local or non-U.S. Tax Law) for each of the Company and the Transferred Subsidiaries with respect to the acquisition of the Shares by the Acquiror and any deemed acquisitions of any other entity resulting from such elections (the “Section 338 Elections”). (ii) The Seller and the Acquiror, with respect to the Company and the Transferred Subsidiaries, agree to (x) report, where applicable, the sale of the stock of the Company (and the deemed sale of the stock of the Transferred Subsidiaries with respect to which such election is made) consistently with the Section 338 Elections and (y) with respect to the Section 338 Elections, where applicable, and to the extent permitted by Law, take no position contrary thereto or inconsistent therewith in any Tax Return, any discussion with or proceeding before any Tax Authority, or otherwise. (iii) On or before the Closing Date, the Seller and the Acquiror shall, and shall cause their Affiliates to, (x) promptly execute (or cause to be executed) and deliver to one another, as appropriate, IRS Form 8023 (and any comparable state and local or non-U.S. forms) and attachments which are required to be filed under applicable Law to effect the Section 338 Elections (but not including IRS Form 8883 or any other similar form that sets forth the allocation of consideration) and the Seller shall duly and timely file such forms with the appropriate Tax Authority, and (y) comply with all requirements of section 338 of the Code (or any other similar provision of state and local law) and the U.S. Treasury Regulations promulgated thereunder. (iv) Notwithstanding anything else to the contrary herein, the Acquiror may make an election under section 338(g) of the Code with respect to any Transferred Subsidiary for which there was a qualified stock purchase under section 338 of the Code.