Common use of Allocation of Purchase Price; Tax Filings Clause in Contracts

Allocation of Purchase Price; Tax Filings. For federal Tax purposes and relevant state income Tax purposes, the Project Company is classified as a disregarded entity. Consequently, the sale and purchase of the Membership Interest hereunder is to be treated as a sale and purchase of the Assets for all such purposes. The Purchase Price, plus the amount of the Project Company’s Liabilities that constitute part of the amount realized for federal income Tax purposes, shall be allocated among the Assets, which allocation shall be arrived at by an independent appraisal, conducted at the Purchaser’s sole expense by Navigant Consulting or another nationally recognized appraiser mutually agreeable to the Purchaser and the Seller, in compliance with Section 1060 of the Code and the regulations promulgated thereunder. The Purchaser shall provide the allocation arrived at by such independent appraisal to the Seller by July 15, 2006. In the event that the Seller disagrees with the allocation arrived at by such independent appraisal, the Purchaser and the Seller shall jointly appoint PricewaterhouseCoopers or another independent accounting firm of international reputation mutually acceptable to the Seller and the Purchaser (the “Independent Accounting Firm”), which shall, at the Purchaser’s and the Seller’s equal expense, within fifteen (15) days (or such other period mutually agreed upon by the Purchaser and the Seller) determine the appropriate allocation with respect to the issues in dispute. The finding of such Independent Accounting Firm shall be binding on the Purchaser and the Seller. Promptly after the determination of the post-Closing Purchase Price adjustment pursuant to Section 2.6, the parties shall mutually revise the allocation to the extent necessary to reflect the Purchase Price adjustments made pursuant to Sections 2.5 and 2.6, and references to “such allocation” in this Section 2.4 shall refer to the allocation after such revision. Each of the Purchaser and the Seller shall (i) timely file all forms (including Internal Revenue Service Form 8594) and Tax Returns required to be filed in connection with such allocation, (ii) be bound by such allocation for purposes of determining Taxes, (iii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with such allocation and (iv) take no position, and cause its Affiliates to take no position, inconsistent with such allocation on any applicable Tax Return, in any audit or proceeding before any Taxing Authority, in any report made for Tax, financial accounting or any other purposes, or otherwise. Notwithstanding the foregoing, the parties agree that it will not be inconsistent with such allocation for (a) the Purchaser’s cost for the Assets to differ from the total amount allocated hereunder to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.4 and (b) the amount realized by the Seller to differ from the total amount allocated pursuant to this Section 2.4 to reflect transaction costs that reduce the amount realized for federal income Tax purposes. In the event that the allocation pursuant to this Section 2.4 is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify the other party hereto concerning the existence and resolution of such dispute.

Allocation of Purchase Price; Tax Filings. For federal Tax purposes and relevant state income Tax purposes, the Project Company is classified as a disregarded entity. Consequently, the sale and purchase of the Membership Interest hereunder is to be treated as a sale and purchase of the Assets for all such purposes. The Purchase Price, plus Price (including the amount of the Project Company’s Liabilities that constitute part of the amount realized for federal income Tax purposes, liabilities expressly assumed by Buyer under this Agreement) shall be allocated among the AssetsAssets as set forth in Exhibit D hereto (the "Allocation") in the manner required on Internal Revenue Service ("IRS") Form 8594 in compliance with Section 1060 of the Internal Revenue Code of 1986, which allocation as amended (the "Code") and the Treasury Regulations promulgated thereunder. Any post-Closing adjustment to (the "Regulations") the Purchase Price shall be arrived at by an independent appraisal, conducted at reflected proportionately in the Purchaser’s sole expense by Navigant Consulting or another nationally recognized appraiser mutually agreeable to final allocation of the Purchaser and Purchase Price among the Seller, Assets in compliance a manner consistent with Section 1060 of the Code and the regulations promulgated Regulations thereunder. The Purchaser shall provide the allocation arrived at by such independent appraisal to the Seller by July 15, 2006. In the event that the Seller disagrees with the allocation arrived at by such independent appraisal, the Purchaser Buyer and the Seller shall jointly appoint PricewaterhouseCoopers or another independent accounting firm of international reputation mutually acceptable to the Seller and the Purchaser (the “Independent Accounting Firm”), which shall, at the Purchaser’s and the Seller’s equal expense, within fifteen (15) days (or such other period mutually agreed upon by the Purchaser and the Seller) determine the appropriate allocation with respect to the issues in dispute. The finding of such Independent Accounting Firm shall be binding on the Purchaser and the Seller. Promptly after the determination of the post-Closing Purchase Price adjustment pursuant to Section 2.6, the parties shall mutually revise the allocation to the extent necessary to reflect the Purchase Price adjustments made pursuant to Sections 2.5 and 2.6, and references to “such allocation” in this Section 2.4 shall refer to the allocation after such revision. Each of the Purchaser and the Seller shall (i) timely file all forms (including Internal Revenue Service Form 8594) and Tax Returns tax returns required to be filed in connection with such allocationthe Allocation, (ii) be bound by such allocation the Allocation for purposes of determining Taxestaxes, (iii) prepare and file, and cause its Affiliates affiliates to prepare and file, its Tax Returns tax returns on a basis consistent with such allocation the Allocation and (iv) take no position, and cause its Affiliates affiliates to take no position, inconsistent with such allocation the Allocation on any applicable Tax Returntax return, in any audit or proceeding before any Taxing Authoritytaxing authority, in any report made for Tax, financial accounting or any other purposes, or otherwise. Notwithstanding the foregoing, the parties agree that it will not be inconsistent with such allocation for (a) the Purchaser’s cost for the Assets to differ from the total amount allocated hereunder to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.4 and (b) the amount realized by the Seller to differ from the total amount allocated pursuant to this Section 2.4 to reflect transaction costs that reduce the amount realized for federal income Tax purposes. In the event that the allocation pursuant to this Section 2.4 Allocation is disputed by any Taxing Authoritytaxing authority, the party receiving notice of such the dispute shall promptly notify the other party parties hereto concerning the existence and resolution of such the dispute. Buyer agrees to permit Seller or the Seller Shareholders to have reasonable access to any records required in order for the Seller Shareholders or the Seller Shareholders to prepare any tax returns or forms to be filed by Seller or the Seller Shareholders after the Closing.

Allocation of Purchase Price; Tax Filings. For federal Tax purposes (a) The Sellers and relevant state income Tax purposesthe Purchaser shall cooperate in good faith to jointly prepare an allocation of the Purchase Price and all other capitalizable costs incurred in connection with the Transactions (collectively, the Project Company is classified as a disregarded entity. Consequently, the sale and purchase of the Membership Interest hereunder is to be treated as a sale and purchase of the Assets for all such purposes. The Purchase Price, plus the amount of the Project Company’s Liabilities that constitute part of the amount realized for federal income Tax purposes, shall be allocated "ALLOCABLE AMOUNT") among the Assets, which allocation shall be arrived at by an independent appraisal, conducted at the Purchaser’s sole expense by Navigant Consulting or another nationally recognized appraiser mutually agreeable to the Purchaser and the Seller, Target Assets in compliance accordance with Section 1060 of the Code and the U.S. Treasury regulations promulgated thereunder. The Purchaser thereunder (and any similar provision of state, local or foreign law, as appropriate), which allocation shall provide the allocation arrived at by such independent appraisal to the Seller by July 15, 2006. In the event that the Seller disagrees with the allocation arrived at by such independent appraisal, be binding upon the Purchaser and the Seller Sellers. If Purchaser and the Sellers cannot agree on the allocation within 60 days after the Closing Date, such dispute shall jointly appoint PricewaterhouseCoopers be settled by Deloitte & Touche LLP or another independent accounting firm of international reputation reputation, in either case, mutually acceptable to Purchaser and Sellers (an "INDEPENDENT ACCOUNTING FIRM"). The Independent Accounting Firm shall resolve such dispute within 30 days of its submission. The determination of the Seller and allocation of the Purchaser (Purchase Price by the “Independent Accounting Firm”), which shall, at the Purchaser’s and the Seller’s equal expense, within fifteen (15) days (or such other period mutually agreed upon by the as set forth in a written notice to Purchaser and Sellers, shall be final, binding and conclusive on the Seller) determine the appropriate allocation with respect to the issues in disputeparties. The finding fees and disbursements of such the Independent Accounting Firm shall be binding on allocated between Purchaser and Sellers in the same proportion that the aggregate amount of the disputed items submitted to the Independent Accounting Firm that are unsuccessfully disputed by each party (as finally determined by the Independent Accounting Firm) bears to the total amount of all disputed items submitted to the Independent Accounting Firm. The parties agree that the purchase price allocation for the German Subsidiaries shall equal $29,000,000 (inclusive of any and all intercompany obligations of any one of the German Subsidiaries). Any subsequent adjustments to the consideration for the Target Assets shall be reflected in such allocation as jointly revised by Purchaser and the Seller. Promptly after the determination Sellers in a manner consistent with Section 1060 of the post-Closing Purchase Price adjustment pursuant to Section 2.6, the parties shall mutually revise the allocation to the extent necessary to reflect the Purchase Price adjustments made pursuant to Sections 2.5 and 2.6, and references to “such allocation” in this Section 2.4 shall refer to the allocation after such revision. Each of the Purchaser Code and the Seller shall U.S. Treasury regulations thereunder (i) timely file all forms (including Internal Revenue Service Form 8594) and Tax Returns required to be filed in connection with such allocationany similar provision of state, (ii) be bound by such allocation for purposes of determining Taxeslocal or foreign law, (iii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with such allocation and (iv) take no position, and cause its Affiliates to take no position, inconsistent with such allocation on any applicable Tax Return, in any audit or proceeding before any Taxing Authority, in any report made for Tax, financial accounting or any other purposes, or otherwise. Notwithstanding the foregoing, the parties agree that it will not be inconsistent with such allocation for (a) the Purchaser’s cost for the Assets to differ from the total amount allocated hereunder to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.4 and (b) the amount realized by the Seller to differ from the total amount allocated pursuant to this Section 2.4 to reflect transaction costs that reduce the amount realized for federal income Tax purposes. In the event that the allocation pursuant to this Section 2.4 is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify the other party hereto concerning the existence and resolution of such disputeas appropriate).

Allocation of Purchase Price; Tax Filings. For federal Tax purposes and relevant state income Tax purposesThe Buyer shall prepare a schedule (the "Allocation Schedule") allocating the Purchase Price among the Acquired Assets. The Buyer shall use its commercially reasonable efforts to deliver the Allocation Schedule to the Seller prior to the Closing, but in no event later than 90 days following the Closing, unless the determination of any Post-Closing Purchase Price Adjustment has not yet been finalized pursuant to Section 1.5(d), in which case, the Project Company Allocation Schedule shall be delivered to the Seller within 15 days following the date on which such Post-Closing Purchase Price Adjustment is classified as a disregarded entity. Consequently, the sale and purchase of the Membership Interest hereunder is to be treated as a sale and purchase of the Assets for all such purposesfinalized in accordance with Section 1.5(d). The Purchase Price, plus the amount of the Project Company’s Liabilities that constitute part of the amount realized for federal income Tax purposes, Allocation Schedule shall be allocated among the Assets, which allocation shall be arrived at by an independent appraisal, conducted at the Purchaser’s sole expense by Navigant Consulting or another nationally recognized appraiser mutually agreeable to the Purchaser and the Seller, prepared in compliance good faith in accordance with Section section 1060 of the Code and the regulations promulgated thereunder. The Purchaser Buyer shall consult with the Seller regarding the manner in which such allocation is determined, and shall provide the allocation arrived at Seller with copies of any valuations or appraisals obtained by such independent appraisal to the Seller by July 15, 2006. In the event that the Seller disagrees Buyer in connection with the allocation arrived at by such independent appraisal, the Purchaser and the Seller shall jointly appoint PricewaterhouseCoopers or another independent accounting firm of international reputation mutually acceptable to the Seller and the Purchaser (the “Independent Accounting Firm”), which shall, at the Purchaser’s and the Seller’s equal expense, within fifteen (15) days (or such other period mutually agreed upon by the Purchaser and the Seller) determine the appropriate allocation with respect to the issues in dispute. The finding Buyer's determination of such Independent Accounting Firm shall be binding on the Purchaser and the Sellerallocation. Promptly after the determination of the postAny Post-Closing Purchase Price adjustment pursuant to Section 2.6, Adjustments and Earnout Payments shall be reflected in the parties shall mutually revise the final allocation to the extent necessary to reflect of the Purchase Price adjustments made pursuant to Sections 2.5 among the Acquired Assets in a manner consistent with the Allocation Schedule and 2.6, and references to “such allocation” in this Section 2.4 shall refer to the allocation after such revision. Each section 1060 of the Purchaser Code and the regulations thereunder. The Seller and the Buyer shall (ia) timely file all federal, state, local and other forms (including Internal Revenue Service Form 8594) and Tax Returns required to be filed in connection with such allocationAllocation Schedule, (iib) be bound by such allocation Allocation Schedule for purposes of determining Taxesfiling such Tax Returns, (iiic) prepare and file, and cause its Affiliates to prepare and file, its all Tax Returns on a basis consistent with such allocation Allocation Schedule and (ivd) take no position, and cause its Affiliates to take no position, inconsistent with such allocation Allocation Schedule on any applicable Tax Return, in any audit or proceeding before any federal, state, local and other Taxing Authority, in any report made for Taxtax, financial accounting or any other purposes, purposes or otherwise. Notwithstanding the foregoing, the parties agree that it will not be inconsistent with such allocation for (a) the Purchaser’s cost for the Assets to differ from the total amount allocated hereunder to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.4 and (b) the amount realized by the Seller to differ from the total amount allocated pursuant to this Section 2.4 to reflect transaction costs that reduce the amount realized for federal income Tax purposes. In the event that the allocation pursuant to this Section 2.4 Allocation Schedule is disputed by any Taxing Authoritytaxing authority, the party receiving notice of such dispute shall promptly notify the other party hereto concerning the existence and resolution of such dispute.

Allocation of Purchase Price; Tax Filings. For federal Tax purposes Within ninety days following of the Closing and relevant state income Tax purposeswithin ninety days following the payment of each Deferred Payment, the Project Company is classified as a disregarded entity. ConsequentlyBuyer, the sale Sub and purchase the Seller shall negotiate and draft a schedule (each an "Allocation Schedule") allocating the Closing Payments (which for purposes of this Section 4.7 shall include the Membership Interest hereunder is to be treated Assumed Liabilities) or the Deferred Payments, as a sale and purchase of applicable, among the Assets for all such purposesAcquired Assets. The Purchase Price, plus the amount of the Project Company’s Liabilities that constitute part of the amount realized for federal income Tax purposes, Each Allocation Schedule shall be allocated among the Assets, which allocation shall be arrived at by an independent appraisal, conducted at the Purchaser’s sole expense by Navigant Consulting or another nationally recognized appraiser mutually agreeable to the Purchaser and the Seller, prepared in compliance accordance with Section 1060 of the Code and the regulations promulgated thereunder. The Purchaser , it being agreed among the parties that $100,000 (in cash payments, with no more than $66,667 of payments at the Closing to be so allocated) of the Purchase Price shall provide the allocation arrived at by such independent appraisal be allocated to the Seller by July 15, 2006. In the event that the Seller disagrees with the allocation arrived at by such independent appraisal, the Purchaser and the Seller shall jointly appoint PricewaterhouseCoopers or another independent accounting firm non-compete obligations of international reputation mutually acceptable to the Seller and the Purchaser (Seller Shareholders. The Buyer, the “Independent Accounting Firm”), which shall, at the Purchaser’s Sub and the Seller’s equal expense, within fifteen (15) days (or such other period mutually agreed upon by Seller further agree that the Purchaser and the Seller) determine the appropriate allocation with respect to the issues in dispute. The finding amount of such Independent Accounting Firm shall be binding on the Purchaser and the Seller. Promptly after the determination of the post-Closing Purchase Price adjustment pursuant to Section 2.6, the parties shall mutually revise the allocation to the extent necessary to reflect the Purchase Price adjustments made pursuant allocated to Sections 2.5 and 2.6, and references tangible personal property shall not exceed the amounts allocated to “such allocation” in this Section 2.4 shall refer to Acquired Assets on the allocation after such revisionFinancial Statements. Each of the Purchaser Buyer, the Sub and the Seller shall (ia) timely file all forms (including Internal Revenue Service Form 8594) and Tax Returns required to be filed in connection with such allocationAllocation Schedules, (iib) be bound by such allocation Allocation Schedules for purposes of determining Taxes, (iiic) prepare and file, and cause its Affiliates affiliates to prepare and file, all of its Tax Returns including amended Tax Returns and Form 8594 on a basis consistent with such allocation Allocation Schedules and (ivd) take no position, and cause its Affiliates affiliates to take no position, inconsistent with such allocation Allocation Schedules on any applicable Tax Return, in any audit or proceeding before any Taxing Authoritytaxing authority, in any report made for Tax, financial accounting or any other purposes or otherwise PROVIDED, HOWEVER, that to the extent permitted under applicable law, the Buyer, 42 the Sub and the Seller shall be permitted, for purposes of filing Form 8594 and all other purposes, or otherwise. Notwithstanding the foregoingto take into account legal and accounting fees and other buying and selling expenses, the parties agree that it will not be inconsistent with such allocation for (a) the Purchaser’s cost for the Assets to differ from the total amount allocated hereunder to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.4 and (b) the amount realized by the Seller to differ from the total amount allocated pursuant to this Section 2.4 to reflect transaction costs that reduce the amount realized for federal income Tax purposesrespectively, as applicable. In the event that the allocation pursuant to this Section 2.4 any Allocation Schedule is disputed by any Taxing Authoritytaxing authority, the party receiving notice of such dispute shall promptly notify the other party parties hereto concerning the existence and resolution of such dispute.