Common use of Asset Allocation Clause in Contracts

Asset Allocation. Within one hundred and twenty (120) days after the Closing Date, Buyer shall use reasonable best efforts to prepare an allocation (the “Asset Allocation”) of the Closing Payment Amount (and all other amounts treated as consideration for the purchase of the assets of the Acquired Companies and the Parent Transferred Assets for U.S. federal income Tax purposes) among the assets of the Acquired Companies and the Parent Transferred Assets, in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder, and any comparable provisions of state, local or other Tax Law, and deliver the Asset Allocation to Seller. If Buyer provides an Asset Allocation within the preceding time, Seller shall have twenty (20) days to provide comments in writing to Buyer, which Buyer shall consider in good faith. Buyer and Seller shall negotiate in good faith to finalize the Asset Allocation (unless Seller does not provide any comment within such twenty (20)-day period, in which case Buyer’s determination of the Asset Allocation shall be deemed final). If the Parties agree to such Asset Allocation, or it shall be deemed final pursuant to the prior sentence, then Buyer, Parent, Seller and the Acquired Companies shall, unless required pursuant to a determination within the meaning of Section 1313(a)(1) of the Code, (A) file all Tax Returns (including IRS Form 8594) consistent with the Asset Allocation, (B) not take any action inconsistent therewith upon any audit or examination of any Tax Return or in any other filing or proceeding relating to Taxes and (C) cooperate in case of a challenge by a Governmental Authority to the Asset Allocation. In the event that the Parties do not agree (and are not deemed to agree pursuant to this Section 2.08) upon the Asset Allocation or Buyer does not provide an Asset Allocation within one hundred and twenty (120) days after the Closing Date, then each Party shall make its own determination in good faith of such allocation for financial and Tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other Party, and the Parties shall have no further obligation under this Section 2.08.

Asset Allocation. Within one hundred The Parties agree that the US Purchase Price and twenty (120) days after the Closing Date, Buyer shall use reasonable best efforts to prepare an allocation (the “Asset Allocation”) portion of the Closing Payment Amount Preliminary Consideration that is allocable to the Peruvian Business (which amount shall be mutually agreeable to the Parties, the Peru Purchase Price) (and all any other relevant amounts treated as consideration for US federal income (and other applicable) Tax purposes with respect to the purchase US Sale and the Peruvian Business Sale) shall be allocated among the assets of US Target and the assets of the Acquired Companies and the Parent Transferred Assets for U.S. federal income Tax purposes) among the assets of the Acquired Companies and the Parent Transferred AssetsPeruvian Business, respectively, in accordance with Section 1060 of the US Code and the Treasury Regulations promulgated thereunderthereunder (the US Allocation and the Peru Allocation, respectively, and any comparable provisions of statecollectively, local or other Tax Law, and deliver the Asset Allocation) (it being understood that it is the Parties’ intention that the Asset Allocation shall not, in any way, contradict or otherwise put into question the US Valuation according to SellerSection 2.7.1(a)). If Within the later of 180 days after the Closing Date or 90 days after the Final Adjustment has become final and binding, Buyer provides an shall prepare and deliver to Seller a scheduling setting forth Buyer’s proposed Asset Allocation within the preceding time, Allocation. Seller shall have twenty (20) 45 days after receipt of the draft Asset Allocation to provide comments submit to Buyer a written notice of objection, setting forth in writing to Buyerreasonable detail the basis for such objection and Seller’s proposed US Allocation and|or Peru Allocation. If Seller does not timely submit such a notice of objection, which then the draft Asset Allocation as prepared by Buyer shall consider in good faithbecome final and binding on the Parties. If Seller does timely submit such a notice of objection, then Seller and Buyer and Seller shall negotiate in good faith to finalize resolve the Asset Allocation (unless dispute. If Seller does not provide and Buyer are unable to fully resolve any comment such dispute within such twenty (20)-day period, in which case the 45 day period following Buyer’s determination receipt of the Asset Allocation Seller’s notice of objection, then Buyer and Seller shall be deemed final). If the Parties agree to such Asset Allocation, or it shall be deemed final pursuant submit all unresolved disputed items to the prior sentenceAccounting Firm (or, then Buyerif the Accounting Firm is not available or otherwise unwilling or unable to resolve the dispute, Parent, Seller and another internationally recognized independent public accounting firm mutually agreeable to the Acquired Companies shall, unless required pursuant to Parties) for resolution in a determination within the meaning of Section 1313(a)(1) of the Code, (A) file all Tax Returns (including IRS Form 8594) manner consistent with the Asset Allocation, (Bprocedures set forth in Section 1(c) not take any action inconsistent therewith upon any audit or examination of any Tax Return or in any other filing or proceeding relating to Taxes and (C) cooperate in case of a challenge by a Governmental Authority to the Asset Allocation. In the event that the Parties do not agree (and are not deemed to agree pursuant to this Section 2.08) upon the Asset Allocation or Buyer does not provide an Asset Allocation within one hundred and twenty (120) days after the Closing Date, then each Party shall make its own determination in good faith of such allocation for financial and Tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other Party, and the Parties shall have no further obligation under this Section 2.08Annex 2.4 Part 1.

Asset Allocation. Within one hundred (i) Buyer shall propose to Sellers’ Representatives an allocation of the Purchase Price and twenty the Company liabilities (120the “Consideration”) to the assets of the Company pursuant to Section 1060 of the Code within 90 days after the Closing Date, Buyer shall use reasonable best efforts to prepare an allocation Date (the “Asset Preliminary Allocation”). Within ten (10) business days following the receipt of the Closing Payment Amount (and all other amounts treated as consideration for Preliminary Allocation, Sellers’ Representatives shall have the purchase right to provide Buyer with a written notice objecting to the Preliminary Allocation, such notice to contain an explanation of the reasons for Sellers’ Representatives’ objections. Within five (5) business days following receipt of Sellers’ Representatives’ objections, if any, to the Preliminary Allocation (the “Allocation Resolution Period”), Buyer and Sellers’ Representatives shall negotiate in good faith to resolve any differences regarding the Preliminary Allocation (as so resolved, the “Final Allocation”). If Sellers’ Representatives do not object to the Preliminary Allocation within the Allocation Resolution Period, the Preliminary Allocation shall be deemed to be the Final Allocation for purposes of this Agreement. The parties agree that for purposes of such Allocation the fair market value of the fixed assets of the Acquired Companies Company and its Subsidiaries shall not exceed $545,776 and the Parent Transferred Assets for U.S. federal income Tax purposes) among the assets fair market value of the Acquired Companies work-in-process inventory of the Company and its Subsidiaries shall not exceed $10 million. (ii) If Buyer and Sellers’ Representatives are unable to resolve any differences with regard to the Parent Transferred AssetsPreliminary Allocation within the Allocation Resolution Period, then any disputed matters shall be finally and conclusively determined in accordance with Section 1060 of the Code by the Independent Accounting Firm. Promptly, but not later than fifteen (15) days after its acceptance of appointment hereunder, the Independent Accounting Firm shall determine only those matters in dispute and shall render a written report as to the disputed matters and the Treasury Regulations promulgated thereunderresulting allocation of the Consideration to the assets of the Company, and such report of the Independent Accounting Firm shall be final, conclusive and binding upon the parties hereto and deemed to be the Final Allocation. The Independent Accounting Firm’s fees and expenses shall be split equally between Buyer and Sellers. (iii) Buyer and the Sellers shall (A) be bound by the Adjusted Final Allocation (as defined in Section 5.8 (g)(iv) hereof) for all Tax purposes, (B) timely file all forms and Tax Returns required to be filed in connection with the Adjusted Final Allocation (including, to the extent required to be filed, IRS Form 8594 and any other forms or reports required to be filed pursuant to Section 1060 of the Code or any comparable provisions of state, United States local or other Tax Law, and deliver state or foreign Law (the Asset Allocation to Seller. If Buyer provides an Asset Allocation within the preceding time, Seller shall have twenty (20) days to provide comments in writing to Buyer, which Buyer shall consider in good faith. Buyer and Seller shall negotiate in good faith to finalize the Asset Allocation (unless Seller does not provide any comment within such twenty (20)-day period, in which case Buyer’s determination of the Asset Allocation shall be deemed final“Section 1060 Forms”). If the Parties agree to such Asset Allocation, or it shall be deemed final pursuant to the prior sentence, then Buyer, Parent, Seller and the Acquired Companies shall, unless required pursuant to a determination within the meaning of Section 1313(a)(1) of the Code), (AC) prepare and file all Section 1060 Forms and Tax Returns (including IRS Form 8594) in a manner consistent with the Asset AllocationAdjusted Final Allocation and (D) take no position inconsistent with the Adjusted Final Allocation in any Section 1060 Form or Tax Return, (B) not take any action inconsistent therewith upon any audit or examination of by, or any Tax Return proceeding before, any taxing authority or in any other filing or proceeding relating to Taxes and (C) cooperate in case otherwise, unless otherwise required by the final determination of a challenge by a Governmental Authority to the Asset Allocationtaxing authority. In the event that the Parties do Adjusted Final Allocation is disputed by any taxing authority, the party hereto receiving notice of such dispute promptly shall notify and consult with the other parties hereto and keep such other parties apprised of material developments concerning resolution of such dispute. Buyer shall control any examination, investigation, audit or other proceeding resulting from such dispute by any taxing authority regarding the Adjusted Final Allocation; provided that Sellers’ Representatives, on behalf of the Sellers, shall have the nonexclusive right to participate in, but not agree to control, such examination, investigation, audit or other proceeding at Sellers’ Representatives, on behalf of the Sellers, sole cost and expense. The Final Allocation and any Section 1060 Forms shall be appropriately adjusted to take into account any post closing payments among the parties hereto (and are not deemed to agree the “Adjusted Final Allocation”), including, without limitation, any Purchase Price Increase or Purchase Price Decrease. All payments made pursuant to this Section 2.08) upon the Asset Allocation or Buyer does not provide an Asset Allocation within one hundred and twenty (120) days after Agreement subsequent to the Closing Date, then each Party Date shall make its own determination in good faith of such allocation be treated as adjustments to the Purchase Price for financial and all Tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other Party, and the Parties shall have no further obligation under this Section 2.08.

Asset Allocation. (i) Within one hundred and twenty ninety (12090) days after the Closing Date, Buyer shall use reasonable best efforts to prepare an allocation (the “Asset Allocation”) of the Closing Payment Consideration Amount (and all other amounts treated as consideration for the purchase of the assets of the Acquired Companies and the Parent Transferred Assets Company for U.S. federal income Tax purposes) among the assets of the Acquired Companies and the Parent Transferred AssetsCompany, in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder, and any comparable provisions of state, local or other Tax Law, and shall deliver the Asset Allocation to Seller. If Buyer provides an Asset Allocation within the preceding time, Seller shall have twenty (20) days to provide comments in writing to Buyer, which Buyer shall consider in good faith. Buyer and Seller shall negotiate in good faith to finalize the Asset Allocation (unless Seller does not provide any comment within such twenty (20)-day twenty-day period, in which case Buyer’s determination of the Asset Allocation shall be deemed final). If the Parties parties agree to such Asset Allocation, or it shall be deemed final pursuant to the prior sentence, then Buyer, Parentthe Company, and Seller and the Acquired Companies shall, unless required pursuant to a determination within the meaning of Section 1313(a)(1) of the Code, (A) file all Tax Returns (including IRS Form 8594) consistent with the Asset Allocation, (B) not take any action inconsistent therewith upon any audit or examination of any Tax Return or in any other filing or proceeding relating to Taxes Taxes, and (C) cooperate in case of a challenge by a Governmental Taxing Authority to the Asset Allocation. In ; otherwise, the event that the Parties do not agree (and are not deemed to agree pursuant to parties shall have no further obligation under this Section 2.08) upon the Asset Allocation or Buyer does not provide an Asset Allocation within one hundred 7.2(c), and twenty (120) days after the Closing Date, then each Party party shall make its own determination in good faith of such allocation for financial and Tax tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other Partyparty. (ii) Buyer shall promptly revise the Asset Allocation to reflect (A) adjustments to the Closing Consideration Amount pursuant to this Agreement (including pursuant to Section 3.4), and (B) any payments of the Parties shall have no further obligation under this Section 2.08Adjustment Escrow Amount or the Subsequent Payment Amount.