Section 338 Sample Clauses

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. (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 Subsidi...

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. 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. 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. (i) Buyer shall join in making a timely election under Code section 338(h)(10) (and any corresponding election under state, local, or foreign law) (a “338 Election”) for the Company in connection with ▇▇▇▇▇’s purchase of the Securities. Each 338 Election will be effected in accordance with the Allocation Schedule. Seller and Buyer shall, within ten (10) days prior to the date such forms are required to be filed under Applicable Law, exchange completed and executed copies of IRS Forms 8023 and 8883, required schedules thereto, and any similar state, local or foreign forms. The completed and executed IRS Form 8883 shall reflect the Allocation Schedule agreed to by Seller and Buyer pursuant to Section 6.02(g). Seller and Buyer shall report the purchase and sale of the Securities consistent with the treatment of the purchase of the Securities as a “qualified stock purchase” and consistent with the 338 Election and shall take no position inconsistent therewith in any Tax Return, any proceeding before any Taxing Authority or otherwise. Buyer shall timely file such IRS Form 8023 and 8883 (and another Tax Returns required to be filed pursuant to effecting any applicable 338 Election) and shall provide copies of each such Form to Seller. (ii) Buyer, Seller, the Company, and each of their respective Affiliates intend, for U.S. federal and similar or analogous U.S. state or local Income Tax purposes, that (A) this Agreement and the Distribution are part of the Contemplated Transactions, (B) Buyer and Seller will jointly make the 338 Election pursuant to this Section 6.02(e), (C) this Agreement constitutes a “plan of liquidation” (within the meaning of Section 332 of the Code) of the Company pursuant to effecting the 338 Election and (D) the Distribution will be treated as a liquidating distribution from the Company to the Seller that is part of the Company’s “plan of liquidation” and that will be governed by Section 332 of the Code, consistent with Treasury Regulation Section 1.338(h)(10)-1(e), Example 2 (clause (A), (B), (C) and (D), together, the “Intended Tax Treatment”). Notwithstanding anything to the contrary in this Agreement, Buyer, Seller, the Company and each of their respective Affiliates shall file all applicable Tax Returns consistent with the Intended Tax Treatment, unless otherwise required pursuant to a “determination” within the meaning of Section 1313 of the Code.

Section 338. Neither the Buyer nor the Company shall make any election under Section 338 of the Code with respect to the transactions contemplated by this Agreement.

Section 338. The Purchaser and Parent shall not make, or cause to be made, any election under Section 338 of the Code (or any other similar provision of applicable Law) with respect to the transactions contemplated by this Agreement.