Common use of Merger Consideration Allocation Clause in Contracts

Merger Consideration Allocation. No later than one-hundred fifty (150) days after final determination of the Merger Consideration pursuant to Article II, Purchaser shall prepare and deliver to the Equityholder Representative a statement allocating the Merger Consideration (as adjusted pursuant to this Agreement) and any liabilities or other relevant items treated as consideration for U.S. federal Income Tax purposes among each of the assets of the Company and the Company Subsidiary for all applicable Tax purposes (the “Merger Consideration Allocation”) in accordance with applicable Law (including Section 1060 of the Code and the Treasury Regulations thereunder) and in a manner consistent with the methodology set forth on Exhibit G (such statement, the “Allocation Statement”). The Equityholder Representative will have fifteen (15) Business Days after receipt of the Allocation Statement (the “Allocation Evaluation Period”) to object to the Allocation Statement by delivery to Purchaser prior to expiration of the Allocation Evaluation Period a notice of objection with reasonable detail of the Equityholder Representative’s objections (an “Allocation Notice of Objection”). If the Equityholder Representative timely delivers an Allocation Notice of Objection to Purchaser, Purchaser and the Equityholder Representative shall negotiate in good faith during the 15-day period beginning on the Business Day after the date of delivery of the Allocation Notice of Objection (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during the Allocation Resolution Period, or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax Return, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth in the Allocation Notice of Objection within the Allocation Resolution Period, however, the Parties will have no further obligation under this Section 7.7, and each party shall make its own determination of the allocation of the Merger Consideration for Tax reporting purposes.

Merger Consideration Allocation. No later than one-hundred fifty (150) days after final determination of the Merger Consideration pursuant to Article II, Purchaser shall prepare and deliver to the Equityholder Representative a statement allocating the Merger Consideration (as adjusted pursuant to this Agreement) and any liabilities or other relevant items treated as consideration for U.S. federal Income Tax purposes among each of the assets of the Company and the Company Subsidiary for all applicable Tax purposes (the “Merger Consideration Allocation”) in accordance with applicable Law (including Section 1060 of the Code and the Treasury Regulations thereunder) and in a manner consistent with the methodology set forth on Exhibit G (such statement, the “Allocation Statement”). The Equityholder Representative will have fifteen (15) Business Days after receipt of the Allocation Statement (the “Allocation Evaluation Period”) to object to the Allocation Statement by delivery to Purchaser prior to expiration of the Allocation Evaluation Period a notice of objection with reasonable detail of the Equityholder Representative’s objections (an “Allocation Notice of Objection”). If the Equityholder Representative timely delivers an Allocation Notice of Objection to Purchaser, Purchaser and the Equityholder Representative shall negotiate in good faith during the 15-day period beginning on the Business Day after the date of delivery of the Allocation Notice of Objection (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during the Allocation Resolution Period, or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax Return, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth in the Allocation Notice of Objection within 157437977.10 the Allocation Resolution Period, however, the Parties will have no further obligation under this Section 7.7, and each party shall make its own determination of the allocation of the Merger Consideration for Tax reporting purposes.

Merger Consideration Allocation. No later than oneThe parties agree that for all Tax (as hereinafter defined) purposes, the Merger will be treated as a taxable sale by Heat-hundred fifty N-Glo of all of its assets and business to Heatilator immediately followed by the deemed liquidation of Heat-N-Glo. The sum of (150i) days after final determination the Merger Consideration, which for this purpose shall be equal to the principal amount of the Short-Term Note, the principal amount of the Long-Term Note, and the aggregate principal amount of the Convertible Debentures, plus (ii) the liabilities of Heat-N-Glo assumed by the Surviving Corporation by reason of the Merger Consideration pursuant represent the amount agreed upon by the parties to Article IIbe the aggregate consideration paid for the assets of Heat-N-Glo, Purchaser and shall be allocated among the assets of Heat-N-Glo in accordance with a schedule (the "Allocation Schedule") to be agreed after the Closing Date by Schechter, Dokken, Kanter, Xxxxxxx & Xxxxxx, Ltd., the accountants for Heat-N-Glo the Primary Stockholders, and Xxxxxx Xxxxxxxx LLP, the accountants for Heatilator and the Surviving Corporation. Schechter, Dokken, Kanter, Xxxxxxx & Xxxxxx, Ltd. shall prepare and deliver the Allocation Schedule to Xxxxxx Xxxxxxxx LLP for its review and approval within 60 days after the Equityholder Representative a statement allocating the Merger Consideration (as adjusted pursuant to this Agreement) Closing Date, and Xxxxxx Xxxxxxxx LLP shall propose any liabilities or other relevant items treated as consideration for U.S. federal Income Tax purposes among each adjustment thereto within 30 days of its receipt of the assets Allocation Schedule. The Allocation Schedule shall comply with the requirements of the Company and the Company Subsidiary for all applicable Tax purposes (the “Merger Consideration Allocation”) in accordance with applicable Law (including Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations regulations promulgated thereunder) and . If the adjustment to the Merger Consideration as provided in a manner consistent with Section 2.2 has not been determined at the methodology time the Allocation Schedule is agreed, any such adjustment shall be reflected as an adjustment to the amount allocated to intangibles as set forth on Exhibit G (such statement, the “Allocation Statement”)Schedule. The Equityholder Representative will have fifteen (15) Business Days after receipt Each of the Allocation Statement parties shall report the Merger, including, without limitation, in all federal, state, local, foreign and other Tax Returns (the “Allocation Evaluation Period”as hereinafter defined) to object to the Allocation Statement prepared and filed by delivery to Purchaser prior to expiration of the Allocation Evaluation Period a notice of objection with reasonable detail of the Equityholder Representative’s objections (an “Allocation Notice of Objection”). If the Equityholder Representative timely delivers an Allocation Notice of Objection to Purchaser, Purchaser and the Equityholder Representative shall negotiate in good faith during the 15-day period beginning on the Business Day after the date of delivery of the Allocation Notice of Objection (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during the Allocation Resolution Period, or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax ReturnHeat-N-Glo or Heatilator, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within accordance with the meaning of Section 1313(a) of the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth allocation described in the Allocation Notice of Objection within Schedule. Heatilator shall prepare and file asset acquisition statements on Form 8594 reflecting such allocation with its federal income Tax Return for the Allocation Resolution Periodtaxable year that includes the Closing Date and, howeverpursuant to Section 6.10, the Parties will have no further obligation under this Section 7.7, and each party Primary Stockholders shall make its own determination file Form 8594 with the federal income Tax Return of Heat-N-Glo for the allocation of taxable year that ends on the Merger Consideration for Tax reporting purposesClosing Date.

Merger Consideration Allocation. No later than one-hundred fifty At least five (1505) days after final determination of the Merger Consideration pursuant to Article II, Purchaser shall prepare and deliver prior to the Equityholder Closing, the Owner Representative shall deliver a statement allocating proposed Allocation (as defined below) to the Buyer. The Owner Representative and Buyer shall thereafter use their best efforts to agree on the Allocation. The Merger Consideration (as adjusted pursuant to this Agreementtogether with the liabilities of the Companies assumed by the Buyer) and any liabilities or other relevant items treated as consideration for U.S. federal Income Tax purposes shall be allocated among each of the assets of the Company Companies subject to any applicable Code sections and the Company Subsidiary for all applicable Tax purposes Treasury regulations (and any similar provision of state, local or foreign Law, as appropriate) (the “Merger Consideration Allocation”) in accordance with applicable Law (including Section 1060 of ). The Zephyr Owners and Buyer shall report the Code and the Treasury Regulations thereunder) and transactions contemplated hereby on all Tax Returns, including, but not limited to Form 8594, as applicable, in a manner consistent with the methodology set forth on Exhibit G (Allocation. If the Merger Consideration is subsequently adjusted for any reason such statement, the “Allocation Statement”). The Equityholder Representative will have fifteen (15) Business Days after receipt of the Allocation Statement (the “Allocation Evaluation Period”) to object that an adjustment to the Allocation Statement by delivery is needed in order for such Allocation to Purchaser prior comply with this Section 6.7, the Owner Representative shall prepare such adjustment to expiration the Allocation which adjustment shall be submitted to Buyer, and the Owner Representative and Buyer shall use their best efforts to agree on the final adjustment within thirty (30) days after the determination of the Allocation Evaluation Period a notice of objection with reasonable detail adjusted Merger Consideration. Buyer and its Affiliates shall timely and properly prepare, execute, file, and deliver all such documents, forms, and other information as the Owner Representative may reasonably request in preparing any required adjustment to the Allocation. If, contrary to the intent of the Equityholder Representative’s objections (parties hereto as expressed in this Section 6.7, any Taxing authority makes or proposes an “allocation different from the Allocation Notice of Objection”). If determined under this Section 6.7, the Equityholder Owner Representative timely delivers an Allocation Notice of Objection to Purchaser, Purchaser and the Equityholder Representative Buyer shall negotiate cooperate with each other in good faith during the 15-day period beginning on the Business Day after the date of delivery of the Allocation Notice of Objection to contest such Taxing authority’s allocation (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during the Allocation Resolution Periodor proposed allocation), or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax Return, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth in the Allocation Notice of Objection within the Allocation Resolution Periodprovided, however, that, after consultation with the Parties will have no further obligation under this Section 7.7party (or parties) adversely affected by such allocation (or proposed allocation), and each the other party shall make (or parties) hereto may file such protective claims or Tax Returns as may be reasonably required to protect its own determination of the allocation of the Merger Consideration for Tax reporting purposes(or their) interests.

Merger Consideration Allocation. No later than one-hundred fifty (150) days after final determination of HoldCo and Buyer agree to treat the Merger Consideration pursuant to Article II, Purchaser shall prepare and deliver to the Equityholder Representative a statement allocating the Merger Consideration (as adjusted pursuant to this Agreement) and any liabilities or other relevant items treated Agreement as consideration for U.S. federal Income Tax purposes among each the sale of the assets Assets of the Company and the Company Subsidiary for all applicable Tax purposes (the “Transaction Tax Treatment”). HoldCo and Buyer agree to allocate the Closing Date Merger Consideration Allocation”and the assumed Liabilities (together with other relevant amounts) in accordance with applicable Law (including Section 1060 of the Code and the Treasury Regulations thereunderpromulgated thereunder and Exhibit C (the “Allocation Principles”). Buyer shall prepare a schedule setting forth an allocation of the Closing Date Merger Consideration and the assumed Liabilities, which shall be allocated among the Assets in accordance with the Allocation Principles (the “Allocation”), and deliver such Allocation to Shareholders’ Representative within 120 days after the Closing Date. Shareholders’ Representative shall have the right to review such Allocation and, to the extent Shareholders’ Representative disagrees with the Allocation, Shareholders’ Representative shall notify Buyer in writing of any objections within 30 days after receipt of such Allocation. HoldCo and Buyer shall use their reasonable best efforts to reach agreement on the disputed items or amounts, if any. If HoldCo and Buyer are unable to reach an agreement regarding the Allocation, then within 30 days following receipt by HoldCo of Buyer’s objections, any disagreement shall be resolved by the Independent Accounting Firm. Any Allocation determined pursuant to the decision of the Independent Accounting Firm shall incorporate, reflect and be consistent with the Allocation Principles. The Allocation, as prepared by HoldCo if no timely objection by Buyer has been given, as adjusted pursuant to any agreement between the Parties or as determined by the Independent Accounting Firm (the “Final Allocation”) shall be final and binding on all Parties. Except as required pursuant to a “determination” within the meaning of Section 1313 of the Code (or any similar provision of state, local or foreign law), HoldCo, Buyer, the Company and all of their respective Affiliates shall file all Tax Returns in a manner consistent with the methodology set forth Transaction Tax Treatment and the Final Allocation and shall take no position inconsistent therewith (including, without limitation, in any amended Tax Returns, claims for refund or audits or examination by any Governmental Entity or any other proceedings) on Exhibit G any Tax Return or in connection with any Tax proceeding; provided, however, nothing herein shall prevent a Party from settling any proposed deficiency or adjustment by any Governmental Entity based on the Final Allocation and no Party will be required to litigate any proposed adjustment by any Governmental Entity challenging such Final Allocation. For the avoidance of doubt, neither HoldCo nor Buyer (such statementor any of their Affiliates) shall take a position inconsistent with the Final Allocation as a defense or offset to any position taken by a Governmental Entity. In the event that the Final Allocation or Transaction Tax Treatment is disputed by any Governmental Entity, the “Allocation Statement”Party receiving the notice of the Contest shall provide the other Party with prompt written notice thereof (which in any event shall be within 30 days of receiving notice of such Contest from the Governmental Entity). The Equityholder Representative will have fifteen (15) Business Days after receipt Any fees and expenses of the Allocation Statement (Independent Accounting Firm shall be borne equally by the “Allocation Evaluation Period”) to object Parties. To the extent reasonably requested by either Party, subject to the Allocation Statement by delivery foregoing, Buyer and HoldCo shall reasonably cooperate in the filing of any forms with respect to Purchaser prior such allocation, including any required amendments to expiration such forms. Notwithstanding any other provisions of this Agreement, the Allocation Evaluation Period a notice of objection with reasonable detail of foregoing agreement shall survive the Equityholder Representative’s objections (an “Allocation Notice of Objection”)Closing Date without limitation. If the Equityholder Representative timely delivers an Allocation Notice of Objection Any adjustments to Purchaser, Purchaser and the Equityholder Representative shall negotiate in good faith during the 15-day period beginning on the Business Day after the date of delivery of the Allocation Notice of Objection (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during under Section 3.7(d), Section 3.9 and Section 3.10 shall be allocated among the Assets in a manner consistent with the Allocation Resolution Period, or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax Return, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth in the Allocation Notice of Objection within the Allocation Resolution Period, however, the Parties will have no further obligation under this Section 7.7, and each party shall make its own determination of the allocation of the Merger Consideration for Tax reporting purposesPrinciples.

Merger Consideration Allocation. No later than one-hundred fifty (150) days after final determination In accordance with the allocations set forth in Section 2.1, Section 2.2 and the agreement of the Merger Consideration pursuant Indemnifying Stockholders to Article IIfund the Escrow Deposit as set forth in the Termination and Escrow Funding Agreement, Purchaser shall prepare of even date herewith among the Company and deliver to the Equityholder Representative Indemnifying Stockholders, a statement allocating copy of which is attached hereto as Exhibit D (the Merger Consideration (as adjusted pursuant to this “Escrow Funding Agreement”) and any liabilities or other relevant items treated using an assumption that the Company Debt shall equal $2,850,000 as consideration for U.S. federal Income Tax purposes among each of the assets Effective Time, the Company has prepared Schedule A attached hereto setting forth (i) the name of each Stockholder of the Company and the Company Subsidiary number of shares, class and series held by such holder, (ii) the respective aggregate amounts, of the Total Indemnifying Stockholder Merger Consideration and Total Remaining Stockholder Merger Consideration to which each such Stockholder is entitled in respect thereof, (iii) for all applicable Tax purposes each Indemnifying Stockholder the respective aggregate amounts of the Escrow Deposit Per Indemnifying Stockholder to be made pursuant to the terms of this Agreement and the Escrow Agreement in respect thereof and (iv) for each Indemnifying Stockholder their respective pro rata indemnity percentage relating to their indemnification obligation pursuant to Article 10 and the Escrow Agreement (the “Merger Consideration Allocation”) in accordance with applicable Law (including Section 1060 of the Code and the Treasury Regulations thereunder) and in a manner consistent with the methodology set forth on Exhibit G (such statement, the “Allocation StatementIndemnity Percentage”). The Equityholder Representative will have fifteen (15) Business Days after receipt of At or before the Allocation Statement Effective Time, a revised Schedule A (the “Allocation Evaluation PeriodRevised Schedule A”) will be prepared by the Company reflecting the actual amount of Company Debt as of the Effective Time and the amount of any withholding taxes required to object be withheld from the Closing Merger Consideration. For the avoidance of doubt, to the Allocation Statement by delivery to Purchaser prior to expiration of extent that any discrepancy between Schedule A on the Allocation Evaluation Period a notice of objection with reasonable detail of the Equityholder Representative’s objections (an “Allocation Notice of Objection”). If the Equityholder Representative timely delivers an Allocation Notice of Objection to Purchaser, Purchaser one hand and the Equityholder Representative shall negotiate in good faith during provisions of Section 2.1 and the 15-day period beginning Escrow Funding Agreement on the Business Day after other hand arises, the date of delivery of the Allocation Notice of Objection (the “Allocation Resolution Period”) to resolve the Equityholder Representative’s objections. If (a) as a result of such negotiation the parties agree on the Merger Consideration Allocation during the Allocation Resolution Period, or (b) if the Equityholder Representative fails to deliver an Allocation Notice of Objection to Purchaser prior to expiration of the Allocation Evaluation Period, then such allocation will be final and binding on the Parties and none of the Parties will take or cause to be taken any position or other action inconsistent with such allocation for any Tax reporting purpose, upon examination of any Tax Return, in any refund claim, or in any Proceeding or otherwise, unless otherwise required by a “determination” (within the meaning provisions of Section 1313(a) of 2.1 and the Code or any similar provision of other applicable Law). Notwithstanding anything to the contrary set forth in this Section 7.7 (including Exhibit G) if the Parties are unable to resolve all disputes set forth in the Allocation Notice of Objection within the Allocation Resolution Period, however, the Parties will have no further obligation under this Section 7.7Escrow Funding Agreement shall be controlling, and each party Schedule A shall make its own determination of the allocation of the Merger Consideration for Tax reporting purposesbe adjusted to reflect any such corrected amount or percentage as shall be determined in accordance therewith.