FURTHER PAYMENTS BY OR TO THE CONVEYED ENTITIES WITH RESPECT TO
SUCH AGREEMENTS OR ARRANGEMENTS SHALL BE MADE, AND ALL OTHER RIGHTS AND
OBLIGATIONS RESULTING FROM SUCH AGREEMENTS OR ARRANGEMENTS BETWEEN THE CONVEYED
ENTITIES AND OTHERS SHALL CEASE AT SUCH TIME.
SECTION 7.13
ADJUSTMENT. ALL AMOUNTS PAID, OR CAUSED TO BE PAID, BY
ONE PARTY OR ITS AFFILIATES TO ANOTHER PARTY OR ITS AFFILIATES PURSUANT TO THIS
AGREEMENT (OTHER THAN INTEREST IN ACCORDANCE WITH SECTION 7.11 HEREOF, BUT
INCLUDING AMOUNTS PAYABLE UNDER ARTICLE VIII HEREOF) SHALL BE TREATED BY THE
PARTIES AS AN ADJUSTMENT TO THE GROSS ASSET PURCHASE PRICE OR GROSS EQUITY
PURCHASE PRICE, AS APPLICABLE, TO THE EXTENT PERMITTED BY LAW.
SECTION 7.14
SECTION 338(H)(10) ELECTION. (A) AT THE SOLE ELECTION OF
SELLER (NOTICE OF WHICH SHALL BE PROVIDED TO PURCHASER NO LATER THAN FIVE
(5) BUSINESS DAYS PRIOR TO THE CLOSING DATE), PURCHASER SHALL JOIN WITH SELLER
IN MAKING AN ELECTION UNDER SECTION 338(H)(10) OF THE CODE AND ANY CORRESPONDING
OR SIMILAR ELECTIONS UNDER STATE, LOCAL OR FOREIGN TAX LAW (COLLECTIVELY THE
"SECTION 338(H)(10) ELECTION") WITH RESPECT TO THE PURCHASE AND SALE OF THE
STOCK OF THE CONVEYED ENTITIES. IN THE EVENT SELLER DOES NOT CHOOSE TO MAKE THE
SECTION 338(H)(10) ELECTION, THE REMAINDER OF THE PROVISIONS OF THIS
SECTION 7.14 SHALL NOT APPLY.
(B)
SELLER SHALL PREPARE AND FILE ALL FORMS AND DOCUMENTS REQUIRED IN
CONNECTION WITH THE SECTION 338(H)(10) ELECTION. FOR THE PURPOSE OF MAKING THE
SECTION 338(H)(10) ELECTION, WITHIN FIVE (5) BUSINESS DAYS OF SELLER'S
NOTIFICATION OF PURCHASER OF SELLER'S INTENTION TO MAKE THE
SECTION 338(H)(10) ELECTION, PURCHASER AND SELLER EACH SHALL EXECUTE TWO
(2) COPIES OF INTERNAL REVENUE SERVICE FORM 8023 (OR SUCCESSOR FORM). PURCHASER
SHALL EXECUTE (OR CAUSE TO BE EXECUTED) AND DELIVER TO SELLER SUCH ADDITIONAL
DOCUMENTS OR FORMS AS ARE REASONABLY REQUESTED TO COMPLETE THE
SECTION 338(H)(10) ELECTION AT LEAST TEN (10) DAYS PRIOR TO THE DATE SUCH
DOCUMENTS OR FORMS ARE REQUIRED TO BE FILED.
(C)
THE PARTIES AGREE THAT, FOR PURPOSES OF THE
SECTION 338(H)(10) ELECTION, THE "AGGREGATE DEEMED SALES PRICE" (THE "ADSP")
WITH RESPECT TO THE ASSETS OF THE CONVEYED ENTITIES BASED UPON THE AMOUNT OF THE
GROSS EQUITY PURCHASE PRICE ALLOCATED TO THE STOCK OF THE CONVEYED ENTITIES
PURSUANT TO SECTION 2.8, SHALL BE ALLOCATED FOR PURPOSES OF SECTION 338 OF THE
66
CODE AND THE APPLICABLE TREASURY REGULATIONS PROMULGATED THEREUNDER (AND ANY
SIMILAR PROVISION OF STATE, LOCAL OR FOREIGN TAX LAW, AS APPROPRIATE) (THE "ADSP
ALLOCATION") IN ACCORDANCE WITH THE PROCEDURES PROVIDED HEREIN, WHICH ALLOCATION
SHALL BE BINDING UPON SELLER, THE CONVEYED ENTITIES AND PURCHASER. WITHIN NINETY
(90) DAYS OF THE CLOSING DATE, SELLER WILL PROVIDE TO PURCHASER COPIES OF
INTERNAL REVENUE SERVICE FORM 8594 AND ANY REQUIRED EXHIBITS THERETO (THE "ASSET
ACQUISITION STATEMENT") AND THE ADSP ALLOCATION, WITH SELLER'S PROPOSED
ALLOCATION OF THE ALLOCATED GROSS PURCHASE PRICE (TOGETHER WITH ANY LIABILITIES
PROPERLY TAKEN INTO ACCOUNT IN DETERMINING THE ADSP) AND THE ADSP ALLOCATION.
PURCHASER WILL PROPOSE TO SELLER ANY CHANGES TO SUCH ASSET