Common use of Determination and Allocation of Consideration Clause in Contracts

Determination and Allocation of Consideration. The parties to this Agreement agree to determine the amount of the Consideration (as defined below) transferred by Buyer and its Affiliates to Seller and its Affiliates pursuant to this Agreement and to allocate that Consideration in accordance with the fair market value of the assets and liabilities transferred. At least 30 days prior the Closing, Seller shall provide Buyer with one or more schedules setting forth the total amount of the expected Consideration as of the first Business Day following the Closing and its allocation among the Transferred Assets, which allocation shall be consistent with the allocation (if any) set forth in Schedule 5.4 as of the date hereof. If Buyer notifies Seller of its disagreement with any items reflected on the schedules so provided, Seller and Buyer shall attempt to resolve the disagreement; to the extent Seller and Buyer cannot agree within 10 days after Seller delivers such schedules to Buyer, Seller and Buyer shall jointly submit their disagreement to the New York City office of an independent “Big Four” accounting firm or such other accounting firm reasonably acceptable to both Seller and Buyer for resolution and the decision of such accounting firm shall be rendered within 10 days after such firm is retained and shall final and binding on the parties. Seller and Buyer shall share equally the costs of employing such accounting firm. Seller and Buyer agree to prepare and file any Tax Returns or forms required to be filed with any Taxing authority with respect to such allocation in a timely fashion in accordance with the applicable rules. To the extent that the Consideration is finally determined or is adjusted after the Closing Date, the parties agree to revise and amend the schedule(s) and any such Tax Returns or forms in the same manner and according to the same procedure. The determination and allocation of the Consideration derived pursuant to this Section 5.4(k) shall be binding on Seller and Buyer and all their respective Affiliates for all Tax reporting purposes. Any amounts paid pursuant to Section 2.13 shall be allocated in accordance with the provisions of this Section, except to the extent the parties agree that all or any portion of such payment is disproportionately attributable to a specific asset or assets, in which case that portion will be allocated to the asset(s) to which it is attributable. “Consideration” shall mean, as of the time it is being determined, the sum of (i) the Initial Purchase Price or the Total Purchase Price, as the case may be; and (ii) Assumed Liabilities; reduced by (iii) the net amount paid by Seller or any of its Affiliates to Buyer or any of its Affiliates pursuant to Section 5.5(p)(iii) (but not taking into account any interest paid pursuant to Section 5.5(p)(iii)) and by (iv) any Delayed Closing Payment.

Determination and Allocation of Consideration. (a) The parties Parties to this Agreement agree to determine the amount of and allocate the Consideration total consideration (as defined belowincluding the Assumed Liabilities) transferred by Buyer and its Affiliates to Seller and its Affiliates pursuant to this Agreement (the “Consideration”) among the Transferred Assets and to allocate that Consideration the covenants contained in Article 11 in accordance with the fair market value Section 1060 of the assets and liabilities transferred. At least 30 Code (the “Allocation”). (b) Buyer shall provide Seller with a preliminary Allocation no later than sixty (60) days prior following the Closing. If Seller disagrees with any item reflected on the preliminary Allocation provided by Buyer, Seller shall provide notify Buyer with one or more schedules setting forth the total amount of the expected Consideration as of the first Business Day following the Closing such disagreement and its allocation among the Transferred Assetsreasons for so disagreeing within thirty (30) days of receipt of such Allocation, in which allocation shall be consistent with the allocation (if any) set forth in Schedule 5.4 as of the date hereof. If Buyer notifies Seller of its disagreement with any items reflected on the schedules so provided, case Seller and Buyer shall attempt to resolve in good faith the disagreement; . If Seller consents in writing to the extent preliminary Allocation within such thirty (30) day period, the preliminary Allocation prepared by Buyer shall become the final Allocation. If Seller does not consent, or if Seller and Buyer cannot agree on a mutually acceptable determination and/or allocation of the Consideration within 10 fifteen (15) days after Seller delivers following Buyer’s receipt of Seller’s objections (if any), such schedules determination and/or allocation shall be made by Ernst & Young LLP or, if such firm is unable or unwilling to Buyermake such determination, such other nationally recognized firm of independent public accountants agreed upon by Seller and Buyer shall jointly submit their disagreement (the “CPA Firm”), within fifteen (15) days following the referral of the matter to the New York City office of an independent “Big Four” accounting firm or such other accounting firm reasonably acceptable to both Seller CPA Firm and Buyer for resolution and the whose decision of such accounting firm shall be rendered within 10 days after such firm is retained and shall final and binding on and whose expenses shall be shared equally by Seller and Buyer. Any subsequent adjustments to the partiesConsideration shall be reflected in the Allocation in a manner consistent with Section 1060 of the Code and the Regulations thereunder, as well as with the Allocation prior to such adjustment to the Consideration. Seller and Buyer shall share equally the costs of employing such accounting firm. Seller and Buyer each agree to prepare and file any Tax Returns or forms required to be filed cooperate with any Taxing authority with respect to such allocation the other in preparing IRS Form 8594 in a timely fashion in accordance manner consistent with the applicable rules. To final Allocation (as agreed by the extent that Parties or as determined by the Consideration is finally determined or is adjusted after CPA Firm), and to furnish the Closing Date, the parties agree to revise and amend the schedule(sother Party with a copy of such Form prepared in draft form within a reasonable period following its due date. (c) and any such Tax Returns or forms in the same manner and according to the same procedure. The determination and allocation of the Consideration derived pursuant to this Section 5.4(k) 3.5 shall be binding on Seller and Buyer and all their respective Affiliates for all Tax reporting purposes. Any amounts paid pursuant to Section 2.13 shall be allocated in accordance with the provisions of this Section, and, except to the extent the parties agree that all otherwise required by a Tax authority, neither of them shall (or any portion of such payment is disproportionately attributable to a specific asset or assets, in which case that portion will be allocated to the asset(s) to which it is attributable. “Consideration” shall mean, as of the time it is being determined, the sum of (i) the Initial Purchase Price or the Total Purchase Price, as the case may be; and (ii) Assumed Liabilities; reduced by (iii) the net amount paid by Seller or permit any of its Affiliates to Buyer to) take any position inconsistent therewith in any Tax Return or similar filing, any of its Affiliates pursuant to Section 5.5(p)(iii) (but not taking into account any interest paid pursuant to Section 5.5(p)(iii)) and by (iv) any Delayed Closing Paymentrefund claim, litigation, controversy or otherwise.

Determination and Allocation of Consideration. The parties to this Agreement Parties agree to determine the amount of and allocate the Consideration (as defined below) consideration transferred by Buyer and its Affiliates to Seller and or its Affiliates pursuant to this Agreement and to allocate that Consideration (the “Consideration”) in accordance with the fair market value of the assets and liabilities transferred. At least 30 days prior To the Closingextent amounts of the Earn Out are considered additional consideration, rather than interest, for U.S. federal income tax purposes, the Parties shall treat such amounts as part of the Consideration, in a manner consistent with the terms of this Section 7.8. Seller shall provide Buyer with one or more schedules setting forth allocating the total amount of the expected Consideration as of the first Business Day prior to or promptly following the Closing for Buyer’s review and its allocation among the Transferred Assetsconsent, which consent shall not be unreasonably withheld or delayed. If Buyer does not inform Seller in writing within twenty (20) days that it is withholding consent and the basis for objection, then the submitted allocation of Consideration shall be deemed accepted and agreed, and final and conclusive for all purposes of this Agreement, provided that such allocation shall be consistent with the allocation (if any) set forth in Schedule 5.4 as of the date hereof. If Buyer notifies Seller of its disagreement with any items reflected on the schedules so provided, Seller and Buyer shall attempt subject to resolve the disagreement; adjustment to the extent required by Law. In the event that Buyer informs Seller and Buyer cannot agree in writing within 10 twenty (20) days after Seller delivers such schedules to Buyerthat it is withholding consent, Seller and Buyer shall jointly submit their disagreement to the New York City office of then an independent “Big Four” accounting firm or such other accounting firm reasonably acceptable mutually agreeable to both Buyer and Seller and Buyer shall be promptly retained to determine the allocation of the Consideration for resolution and the decision U.S. federal income tax purposes. The determination of such accounting firm shall be rendered within 10 days after such firm is retained and shall final and binding on the partiesParties. Seller and Buyer shall share equally the The costs of employing retaining such accounting firmfirm shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller. Seller and Buyer agree to prepare and file any Tax Returns or forms required to be filed with any Taxing authority with respect to such allocation an IRS Form 8594 in a timely fashion in accordance with the applicable rulesrules under Section 1060 of the Code. To the extent that the Consideration is finally determined or is adjusted after the Closing Date, the parties Parties agree to revise and amend the schedule(s) schedule and any such Tax Returns or forms IRS Form 8594 in the same manner and according to the same procedure. The determination and allocation of the Consideration derived pursuant to this Section 5.4(k) 7.8 shall be binding on Seller and Buyer and all their respective Affiliates for all income Tax reporting purposes. Any amounts paid pursuant to Section 2.13 shall be allocated in accordance with the provisions of this Section, except to the extent the parties agree that all or any portion of such payment is disproportionately attributable to a specific asset or assets, in which case that portion will be allocated to the asset(s) to which it is attributable. “Consideration” shall mean, as of the time it is being determined, the sum of (i) the Initial Purchase Price or the Total Purchase Price, as the case may be; and (ii) Assumed Liabilities; reduced by (iii) the net amount paid by Seller or any of its Affiliates to Buyer or any of its Affiliates pursuant to Section 5.5(p)(iii) (but not taking into account any interest paid pursuant to Section 5.5(p)(iii)) and by (iv) any Delayed Closing Payment.

Determination and Allocation of Consideration. The parties to this Agreement STOCKHOLDERS, the --------------------------------------------- COMPANY and HDS agree to determine the consideration amount and value of the Consideration (as defined below) total consideration transferred by Buyer and its Affiliates to Seller and its Affiliates the STOCKHOLDERS pursuant to this Agreement plus any liabilities of the COMPANY (plus other relevant items as provided under the Code) (in the aggregate referred to hereafter as the "Section 1060 Consideration") and to allocate that such Section 1060 Consideration among the assets and liabilities transferred in accordance with the fair market value regulations promulgated under Section 1060 of the assets and liabilities transferredCode. At least 30 Within 90 days prior after the ClosingClosing Date, Seller HDS shall provide Buyer STOCKHOLDERS with one or more schedules setting forth allocating the total amount of the expected Consideration as of the first Business Day following the Closing and its allocation among the Transferred Assets, which allocation shall be consistent with the allocation (if any) set forth in Schedule 5.4 as of the date hereofSection 1060 Consideration. If Buyer notifies Seller of its disagreement the STOCKHOLDERS disagree with any items item reflected on the schedules so provided, Seller STOCKHOLDERS shall have the right within 30 days of the date of such notice to notify HDS of any disagreement and Buyer the reason for so disagreeing, in which case STOCKHOLDERS and HDS shall attempt in good faith to resolve the disagreement; disagreement without undue delay, provided, however, that if they do -------- ------- not do so, STOCKHOLDERS and HDS each agree to accept and be bound by the extent Seller determination of Deloitte & Touche. HDS and Buyer cannot agree within 10 days after Seller delivers the STOCKHOLDERS each will bear one-half the fees of Deloitte & Touch in making such schedules determination. The failure of STOCKHOLDERS to Buyer, Seller and Buyer shall jointly submit their provide notice of disagreement to the New York City office HDS within such 30 day period shall constitute a waiver of an independent “Big Four” accounting firm or such other accounting firm reasonably acceptable to both Seller and Buyer for resolution right. HDS and the decision of such accounting firm shall be rendered within 10 days after such firm is retained and shall final and binding on the parties. Seller and Buyer shall share equally the costs of employing such accounting firm. Seller and Buyer STOCKHOLDERS agree to prepare and file any Tax Returns or all forms required to be filed with any Taxing authority with respect to such allocation jointly or independently in a timely fashion in accordance with the applicable rulesrules and regulations under Section 1060 of the Code. Such forms shall be prepared in a manner consistent with the allocation made under this Section 10.10 (to the extent applicable). To the extent that the Section 1060 Consideration is finally determined or is adjusted after the Closing Date, the parties agree to revise and amend the schedule(s) any relevant schedule and any such Tax Returns or forms IRS form in the same manner and according to the same procedureprocedure described hereunder. The determination and allocation of the Section 1060 Consideration derived pursuant to this Section 5.4(k) subsection shall be binding on Seller STOCKHOLDERS and Buyer and all their respective Affiliates HDS for all Tax reporting purposes. Any amounts paid pursuant to Section 2.13 shall be allocated in accordance with the provisions of this Section, except to the extent the parties agree that all or any portion of such payment is disproportionately attributable to a specific asset or assets, in which case that portion will be allocated to the asset(s) to which it is attributable. “Consideration” shall mean, as of the time it is being determined, the sum of (i) the Initial Purchase Price or the Total Purchase Price, as the case may be; and (ii) Assumed Liabilities; reduced by (iii) the net amount paid by Seller or any of its Affiliates to Buyer or any of its Affiliates pursuant to Section 5.5(p)(iii) (but not taking into account any interest paid pursuant to Section 5.5(p)(iii)) and by (iv) any Delayed Closing Payment.