Common use of Section 338 Clause in Contracts

Section 338. Should Purchasers choose to make an election under Section 338 of the Code with respect to ASSA or ASI (each, a “Section 338 Election”), Purchasers shall promptly notify Sellers of their intent to make any such election. Sellers shall execute such documents as may be required of it in connection with any such election promptly after such documents have been provided to Sellers by Purchasers. Sellers will deliver to Purchasers a computation of the amount of any Taxes (the “Excess Tax Amount”) which may be imposed on Sellers or their Affiliates as a result of a Section 338 Election, such amount being (i) the excess of the amount of Taxes payable by Sellers or their Affiliates with such Section 338 Election having been made over the amount of Taxes that would have been payable if such Section 338 Election had not been made, plus (ii) the Taxes imposed on Sellers or their Affiliates as a result of the payments made pursuant to this Section 6.08 (including the payments described in this clause (ii)) provided that for purposes of determining the Excess Tax Amount with respect to an election, the relevant Seller or Seller Affiliate shall be deemed to have paid Taxes in respect of such an election to the extent that it is required under Law to absorb any Tax attribute (including, without limitation, foreign tax credits) in excess of the Tax attributes that would have been absorbed had no such election been made. If Sellers and Purchasers are unable to reach agreement on the Excess Tax Amount within thirty (30) days following delivery of Sellers’ computation, then the Excess Tax Amount shall be determined by an Independent Expert, who shall make its determination within thirty (30) days following the date on which it was retained. The determination of the Independent Expert shall be, absent manifest error, final and binding on Purchasers and Sellers. Purchasers shall pay the Excess Tax Amount as additional Purchase Price to Sellers within five (5) Business Days after the determination of the Excess Tax Amount is agreed to by the parties or determined by the Independent Expert, as the case may be. Purchasers shall also reimburse Sellers for the expenses incurred in determining such Excess Tax Amount; provided that the cost of the Independent Expert shall be shared equally by Purchasers and Sellers.