Independent Sponsor 338(h)(10) Elections in Specialty Distribution
Structuring 338(h)(10) Elections on specialty distribution deals, with the structure protection and capital connectivity an independent sponsor actually needs.
Specialty Distribution deals in the lower middle market run a specific playbook. 338(h)(10) Elections is where the structure either holds or starts to leak.
The typical specialty distribution platform sits at $10M to $100M EV with EBITDA in the $2.5M to $18M range. The thesis runs on vertical buy-up of niche product distributors. Most distribution multiples are wrong by half a turn until the rebate accounting gets normalized.
How 338(h)(10) Elections actually gets structured.
Run a side-by-side tax model showing the seller's grossed-up purchase price requirement.
Document the election in the purchase agreement, with required IRS forms attached.
Confirm the seller's eligibility, including the consolidated group structure.
Plan the tax gross-up payment, often funded out of the buyer's price.
In specialty distribution, layer in supplier reaffirmation letters before LOI signs as part of the 338(h)(10) Elections workstream.
Demanding a 338(h)(10) without offering the seller a tax gross-up. The election only works if the math works for the seller too.
"338(h)(10) is a buyer benefit you have to pay for. Price it into the LOI, not the surprise column."Jason Powell · 338(h)(10) Elections
The deal is one thing. The capital that opens up after close is another.
Refinancing, recaps, growth rounds, and the right strategic conversation eighteen months early are all downstream of relationships that take years to build and minutes to use.
Related deal pages.
Transaction Fee Structuring for Specialty Distribution
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Working Capital Adjustments for Specialty Distribution
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Representation & Warranty Insurance for Specialty Distribution
A buyer-side insurance product covering breach of seller representations, reducing seller escrow and indemnit…
Indemnification for Specialty Distribution
The seller's contractual promise to compensate the buyer for breaches of representations, covenants, and spec…
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An LOI on the desk, a specialty distribution target, and a 338(h)(10) Elections question worth a real conversation.
Twenty minutes of practitioner-grade input from a securities attorney whose first move is to read the deal, not the engagement letter.