Section 338. (a) Buyer will, or will cause its applicable Affiliate to, join with the applicable Sellers, and the applicable Sellers shall join with Buyer or its applicable Affiliate, in jointly making a timely and irrevocable election under Section 338(h)(10) of the Code with respect to Buyer’s acquisition (or the acquisition by an Affiliate of Buyer) of the Equity Interests of Xxxxxx Re Inc. and Xxxxxx Securities Inc. pursuant to this Agreement and, if permissible, similar elections under any applicable state and local Tax Laws (collectively, the “Section 338(h)(10) Elections”). Sellers and Buyer shall each deliver completed and executed copies of IRS Form 8023, required schedules thereto, and any similar state and foreign forms at the Closing in accordance with Section 2.09(a)(vii) and Section 2.09(b)(vii). If any changes are required in these forms as a result of information which is first available after these forms are prepared, the parties will promptly make such changes.
Section 338. Neither Parent nor Buyer shall make (or permit to be made) any election under Section 338 of the Code (or any comparable applicable provision of state, local or foreign Tax law) with respect to the acquisition of Company and Company Subsidiary.
Section 338. (i) Elections. Seller, the Subsidiaries and Purchaser shall make joint elections under Sections 338(g) and 338(h)(10) of the Code (the "338 Elections") with respect to the purchase of the Shares and under any similar provisions of state law. Seller represents that its sale of the Shares is eligible for, and Purchaser represents that it is qualified to make, such elections. Seller and Purchaser agree to prepare and file IRS Form 8023, required schedules thereto, and any similar state forms in a timely fashion in accordance with the rules under Section 338 of the Code or under a similar provision of state law, as the case may be. If any changes are required in these forms subsequent to their filing, the parties will promptly agree on such changes.
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”).
Section 338. Following the Closing Buyer and its Affiliates shall make a valid and timely election under Section 338(g) of the Code, and any corresponding election under state, local or foreign Tax Law, with respect to each of the Foreign Purchased Entities (a “Section 338 Election”).
Section 338. The parties agree to take all steps necessary and/or required, both before and after the Effective Time, to cause the Merger to qualify under the provisions of Section 338 of the Code, including but not limited to the execution of all forms required by the Internal Revenue Service and the appropriate actions required to adjust the books and records of the parties as appropriate under the Code and GAAP as applied in the United States.
Section 338. No election pursuant to Section 338 of the Code shall be made by Purchaser in respect of the acquisition of any Acquired Company.
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.
Section 338. No election under Section 338 of the Code (or any similar provision of state or local law) shall be made with respect to the purchase of the Xxxxxx Marketing Shares or Xxxxxx Financial Shares pursuant to this Agreement. At any time up to 180 days after the Closing Date, the Purchaser may request of the Seller in writing (the "ELECTION NOTICE") that the Purchaser and the Seller file a joint election under Code Section 338(h)(10) with respect to the purchase of the Market USA Shares and under any similar provisions of state, local or foreign law (the "ELECTIONS"), and the Seller shall agree to such request. The Election Notice shall specify each state, local and foreign election to be made with respect to the acquisition of the Market USA Shares by the Purchaser. If the Purchaser requests the Elections, as promptly as practicable following the Closing Date, (i) the Seller and the Purchaser shall cooperate with each other to take all actions necessary and appropriate (including filing such forms, returns, elections, schedules and other documents as may be required) to effect and preserve timely Elections in accordance with the provisions of Treasury Regulation Section 1.338(h)(10)-1 (or any comparable provision of state or foreign law or any successor provision) and (ii) the Purchaser and the Seller shall mutually agree on the allocation of the Purchase Price (including assumed liabilities and liabilities taken subject to) among the assets of the Companies that are deemed to have been acquired pursuant to the Elections. If such Elections are requested, the Seller and the Purchaser shall report the purchase by the Purchaser of the Shares pursuant to this Agreement consistent with the Elections and shall take no position inconsistent therewith in any Tax Return, any proceeding before any taxing authority or otherwise. The Seller and the Purchaser shall cooperate in sharing and verifying information to carry out this SECTION 5.4(h).
Section 338. Neither the Seller nor the Company has taken any action or will take any action that could result in a deemed election under Section 338 of the Code with respect to the Company.
