Tax Allocation. The Purchase Price shall be allocated in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this Agreement.
Appears in 2 contracts
Samples: Master Purchase and Sale Agreement (Plum Creek Timber Co Inc), Master Purchase and Sale Agreement (MEADWESTVACO Corp)
Tax Allocation. The Within thirty (30) days following the Closing, Buyer shall prepare or cause to be prepared and shall deliver to Seller a draft allocation of the Base Purchase Price shall be allocated as adjusted pursuant to Section 3.3, prepared in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller Treasury Regulations issued thereunder (and Purchaser in the manner set forth in this Section 37any similar provision of state, provided that local or foreign law, as appropriate) (each such allocation methodology shall incorporateallocation, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the a “Allocation FrameworkPurchase Price Allocation”). No later than sixty Within ten (6010) days after the Closing Datereceipt of such draft Purchase Price Allocation, Seller shall deliver will propose to Purchaser an allocation of Buyer in writing any objections or proposed changes to such draft Purchase Price Allocation (and in the event that no such changes are proposed in writing to Buyer within such time period, Seller will be deemed to have agreed to, and accepted, the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser of objections or proposed changes, Buyer and Seller shall negotiate will attempt in good faith to resolve any differences between them with respect to the disputePurchase Price Allocation, in accordance with requirements of Section 1060 of the Code, within ten (10) days after Buyer’s receipt of a timely written notice of objection or proposed changes from Seller. If Purchaser Buyer and Seller fail are unable to agree on resolve such allocation before differences within such time period, then any remaining disputed matters will be submitted to an independent accounting firm, the date that is one hundred fifty (150) days following the Closing Date, such allocation identity of which shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser Buyer and Seller or determined each acting reasonably, for resolution. Promptly, but by no later than ten (10) days after submission to it of the dispute(s), the independent accounting firm will determine those matters in dispute and will render a firm of accountants under this Section 37written report as to the disputed matters and the resulting allocation, (the “Final Allocation”) which report shall be final conclusive and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the The fees and expenses of the independent accounting firm in respect of such accounting firmreport shall be paid one-half by Buyer and one-half by Seller. Except to the extent otherwise required by applicable lawBuyer and Seller shall report, (a) Seller and Purchaser agree to prepare act, and file an IRS in all respects and for all Tax purposes (including the filing of Internal Revenue Service Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, 8594) in a manner consistent with such allocations set forth on the Final AllocationPurchase Price Allocation so finalized, (b) and shall take no position for Tax purposes inconsistent therewith unless required to do so by applicable law. Buyer and Seller shall reasonably cooperate in the preparation, execution and Purchaser shall adhere filing and delivery of all documents, forms and other information as the other Party may reasonably request to assist in the preparation of any filings relating to the Final Allocation for all Tax-related purposes including any federalallocation, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect pursuant to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this AgreementSection 3.5.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Tax Allocation. The Purchase Price Prior to the Closing, Seller and Purchaser shall be allocated cooperate in good faith to determine a reasonable allocation of the total consideration paid for the Transferred Assets, as finally determined pursuant to Section 2.1(d), Section 2.1(i) and Section 3.3, in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using Treasury Regulations promulgated thereunder (the methodology “Purchase Price Allocation”). Seller and Purchaser shall cooperate in good faith to mutually agree to such allocation and shall reduce such agreement to writing, which agreement shall be reflected in an Exhibit 2.1(j) to be approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”)prior to Closing. No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller jointly and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall properly execute each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS party’s respective completed Internal Revenue Service Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation8594, and any comparable other forms or statements required by the Code (or state or local income Tax formlaw), Treasury Regulations or the Internal Revenue Service or other Governmental Authority (together with any and all attachments required to be filed therewith), which forms and statements will be prepared in a manner consistent with the Final Purchase Price Allocation, (b) . Seller and Purchaser shall adhere file timely such forms and statements with the Internal Revenue Service or other Governmental Authority. The Purchase Price Allocation shall be appropriately adjusted to take into account any subsequent payments under this Agreement and any other subsequent events required to be taken into account under Section 1060 of the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income Code. Seller and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall not file any Tax Return or, in a judicial or administrative proceeding, assert other documents or maintain otherwise take any Tax reporting position with respect to Taxes that is inconsistent with the Purchase Price Allocation; provided, however, that neither Seller nor Purchaser shall be obligated to litigate any challenge to such allocation by any Governmental Authority. Seller and Purchaser shall promptly inform one another of any challenge by any Governmental Authority to any allocation made pursuant to this Agreement Section 2.1(j) and agree to consult with and keep one another informed with respect to the state of, and any discussion, proposal or the Final Allocation agreed to in accordance submission with this Agreementrespect to, such challenge.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Heartland Financial Usa Inc), Purchase and Assumption Agreement (QCR Holdings Inc)
Tax Allocation. The Purchase Price (a) No later than 30 days after the resolution of the Final Net Working Capital, Buyer shall be allocated provide a schedule to Seller setting forth in accordance reasonable detail an allocation of the purchase price among the assets of the Company in a manner consistent with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that Treasury Regulations thereunder (such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, “Draft Allocation”).
(b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) Within 30 days after the Closing Datereceipt of the Draft Allocation, Seller shall deliver provide notice to Purchaser an allocation Buyer of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and any dispute as to the extent relating to the Draft Allocation (or any portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”thereof). No later than one hundred twenty If Seller timely disputes the Draft Allocation (120) days after the Closing Dateor any portion thereof), Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser Buyer and Seller shall negotiate in good faith to resolve the dispute. If Purchaser Seller does not timely dispute the Draft Allocation (or any portion thereof), the Draft Allocation shall be final and binding on the Parties and if Seller timely disputes the Draft Allocation and Seller fail to agree on and Buyer resolve such allocation before the date that is one hundred fifty (150) dispute within 15 days following Seller’s notice of dispute, the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Draft Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation (as appropriately adjusted to reflect any final resolution of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”dispute) shall be final and binding upon on the Parties. Each of Purchaser Parties (any final and binding allocation under this shall be referred to as the “Final Allocation”).
(c) In the event there is a Final Allocation and there is an adjustment to the purchase price after the Final Allocation has been determined, Seller and Buyer shall make appropriate adjustments in accordance with the Final Allocation to reflect such adjustment (the “Revised Allocation”).
(d) Buyer and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an all Tax Returns (including IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state amended Tax Returns or local income Tax form, claims for refund) in a manner consistent with the any Final Allocation (subject to necessary adjustments to reflect a Revised Allocation) and neither Buyer nor Seller will take any position inconsistent with such allocation on any Tax Return or otherwise, unless required to do so by applicable Law or a final “determination,” within the meaning of Section 1313(a)(1) of the Code (or similar provision of state or local Law); provided, however, that nothing contained herein shall prevent Seller or Buyer, after a good faith defense, from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the Final Allocation or any Revised Allocation and neither Buyer nor Seller shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Authority challenging the Final Allocation or Revised Allocation, as applicable. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened Tax audit or assessment challenging to how the purchase price is allocated among the assets of the Company.
(e) Notwithstanding the foregoing, if prior to the due date of a Tax Return to be filed after the Closing Date there is not a Final Allocation, (b) Seller and Purchaser Buyer or Seller, as the case may be, shall adhere be entitled to the Final Allocation for all Tax-related purposes including take any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis good faith position with respect to sameall unresolved items as to the allocation of the purchase price on such Tax Return to be filed, and (c) neither Purchaser nor if on or prior to the February 10, 2018, there is not a Final Allocation, each of the Buyer and Seller shall file be entitled to take any good faith position with respect to all unresolved items as to the allocation of the purchase price on any Tax Return orto be filed after February 10, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this Agreement2018.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Tax Allocation. The Purchase Price Within 60 calendar days following the Closing, Purchasers shall be allocated in accordance with deliver to South Central Seller a draft allocation of the aggregate consideration (including any assumed liabilities and other relevant items treated as consideration for federal income tax purposes) for the Interests among the assets of the Acquired Companies for purposes of Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using Treasury Regulations thereunder (the methodology mutually approved by “Allocation Schedule”). Within 30 calendar days after the date of the delivery of such draft Allocation Schedule to South Central Seller, South Central Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) propose to Purchasers any changes to the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “draft Allocation Framework”)Schedule. No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, South Central Seller and Purchaser Purchasers shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate cooperate in good faith to resolve the dispute. If Purchaser and Seller fail to mutually agree on any contested items and shall revise the Allocation Schedule to reflect any such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation agreement. The Parties shall be determined, within a reasonable time and act in a manner that incorporates, reflects and is consistent accordance with the agreed-upon Allocation FrameworkSchedule in the preparation, by an independent, nationally recognized firm filing and audit of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller no party shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain otherwise take any position for Tax reporting position purposes that is inconsistent with this Agreement the agreed-upon Allocation Schedule unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Code (or any similar provision of applicable U.S. state or local or non-U.S. Law); provided, that nothing contained herein shall prohibit a Party from settling any proposed deficiency or adjustment by any Taxing Authority based upon or arising out of the Final allocation, and neither South Central Seller nor Purchasers shall be required to litigate before any court any proposed deficiency or adjustment by any taxing authority challenging the allocation. Notwithstanding the foregoing, if the Parties do not agree on an Allocation agreed Schedule within 120 days after the date of delivery of the Allocation Schedule by the Purchasers, the Parties will each prepare their own allocation of the purchase price among the assets to be used by such Party and its Affiliates, provided such allocation is reasonable and in accordance with this Agreementthe Code and the Treasury Regulations promulgated thereunder.
Appears in 1 contract
Tax Allocation. The Purchase Price shall be allocated in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (ai) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than Within sixty (60) days after the Closing Datefinal resolution of the adjustments provided pursuant to Section 2.05, Seller Buyer shall deliver provide to Purchaser an the Representative a draft allocation statement that allocates the sum of the Purchase Price and all other items required to be taken into account for federal income Tax purposes with respect to the purchase and sale of the Membership Interests pursuant to this Agreement (including the liabilities of the Acquired Companies) (collectively, the “Total Tax Consideration”) among the Timberlandsassets of the Acquired Companies, mineralswhich allocations shall be made in accordance with the methodology set forth on Exhibit D, Timberlands Contractswhich is intended to be in accordance with Section 751, 755 and 1060 of the Code and the applicable Treasury Regulations, and Personal Propertyany applicable state, which allocation local and non-U.S. Tax Law (the “Tax Allocation Statement”). The Representative shall be reasonable, based on fair market values, consistent with have the Code, shall incorporate, reflect and be consistent with the Allocation Framework and right to the extent relating object to the any portion of the Purchase Price paid Tax Allocation Statement by written notice to Buyer. If the Representative does not object to the Tax Allocation Statement by written notice to Buyer within thirty (30) Business Days after receipt by the Representative of the Tax Allocation Statement, then the Tax Allocation Statement shall be deemed to have been accepted and agreed upon, and final and conclusive, for all purposes of this Agreement; provided, however, that such Tax Allocation Statement shall be subject to adjustment upon and as a result of any adjustment to the Timberlandsamounts used to determine the allocations used to prepare the Tax Allocation Statement under this Agreement. If the Representative objects to the Tax Allocation Statement, it shall notify Buyer in writing of its objection to the Tax Allocation Statement before the end of such 30-day period and shall set forth an allocation between in such written notice the Installment Sale Timberlands disputed item or items and the Non-Installment Sale Timberlands basis for its objection. Buyer and the Representative shall act in good faith to resolve any dispute for which timely notice is given for a period of thirty (30) Business Days thereafter. If, within thirty (30) Business Days of the “Proposed Allocation”Representative’s delivery of a valid written notice of objection to the Tax Allocation Statement, Buyer and the Representative have not reached an agreement regarding the disputed item or items specified in such written notice, the dispute shall be presented to the Referee, whose determination shall be binding upon the parties; provided that, in resolving such dispute, the Referee shall take into account the methodology set forth on Exhibit D. The fees and expenses of the Referee shall be allocated between Buyer and the Sellers in the same manner as provided in Section 2.05(c). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocationmutatis mutandis. In the event that Seller any adjustment to the aggregate purchase price is paid between the parties pursuant to the terms of this Agreement (or there is otherwise an adjustment to the Total Tax Consideration hereunder), Buyer shall provide the Representative a revised Tax Allocation Statement and Purchaser have not so agreed by such date Purchaser the principles of this Section 6.03(c) shall apply to each revised Tax Allocation Statement (for the avoidance of doubt, including dispute resolution if necessary).
(ii) Buyer, the Sellers and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Datetheir respective Affiliates shall, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined unless otherwise required by a firm “determination” (within the meaning of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%1313(a) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable lawCode), (aA) Seller and Purchaser agree to prepare and file an all Tax Returns, including all IRS Form Forms 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state other appropriate Tax Returns or local income Tax formforms, in a manner consistent with the Final AllocationTax Allocation Statement, (bas finally determined pursuant to this Section 6.03(c) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (cB) neither Purchaser nor Seller shall file take no position in any Tax Return orReturn, in a judicial or administrative proceeding, assert audit or maintain any Tax reporting position otherwise that is inconsistent with the Tax Allocation Statement, as finally determined pursuant to this Agreement or the Final Allocation agreed Section 6.03(c) (in each case, subject to adjustment in accordance with this AgreementSection 6.03(c) in the event of any adjustment to the Total Tax Consideration). In the event that any of the allocations set forth in the Tax Allocation Statements are disputed by any Governmental Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party concerning the resolution of such dispute.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Catalent, Inc.)
Tax Allocation. The (a) For all Tax purposes, within 120 days following the Closing Date, the Buyer shall prepare an allocation of the Purchase Price shall be allocated (plus any Assumed Liabilities that are treated as consideration for the Purchased Assets for federal income tax purposes) among the Purchased Assets in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using Treasury Regulations promulgated thereunder and for applicable Transfer Tax purposes which shall be submitted to the methodology mutually approved by Seller for review and Purchaser in the manner set forth in approval, which approval shall not be unreasonably withheld, conditioned, or delayed (such amount as finally determined pursuant to this Section 372.7(a), provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”Price Allocation” ). No later than sixty (60) If the Seller agrees in writing with the Price Allocation or fails to object in writing to the Price Allocation within 10 days after following receipt thereof from the Closing DateBuyer, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation Allocation shall be reasonable, based on fair market values, consistent with conclusive and binding upon the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands Buyer and the Non-Installment Sale Timberlands (Seller for all Tax purposes. If the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor parties are unable to agree on the Proposed Price Allocation after good faith consultation, the matters in dispute shall be referred for resolution to a mutually agreeable, nationally recognized independent public accounting firm, which shall be selected mutually by the Buyer and the Seller (the “Independent Accounting Firm”), that is not then providing Tax advice to the Buyer or the Seller or their respective Affiliates, which expense shall be borne equally by the parties. The Independent Accounting Firm shall resolve any disputed matters as promptly as practicable, and the Independent Accounting Firm’s decision with respect to any such matter shall be conclusive and binding on the Buyer and the Seller and their respective Affiliates for applicable Tax purposes. If the Independent Accounting Firm is unable to resolve any such matter prior to the due date (including extensions, which will be sought as necessary) for filing any Tax Return reflecting any such matter, then Buyer may timely file its Tax Return (including Form 8594) on the basis of the Price Allocation proposed by the Buyer and the Seller may timely file its Tax Return (including Form 8594) on the basis of the Price Allocation that the Seller proposed to the Buyer in lieu of the Buyer’s Price Allocation. In Such Tax Returns shall be amended as necessary to reflect the event that Independent Accounting Firm’s decision.
(b) Each party agrees to timely file any form required to be filed by Applicable Law reflecting the Price Allocation (including IRS form 8594). The Price Allocation made pursuant to this Section shall be binding on the Buyer and the Seller and Purchaser have not so agreed by such date Purchaser and for all Tax reporting purposes. Neither the Buyer nor the Seller shall negotiate take any position inconsistent with the Price Allocation in connection with any Tax proceeding. If any Governmental Authority disputes the Price Allocation, the party receiving notice of the dispute shall promptly notify the other party hereto, and the parties shall cooperate in good faith in responding to resolve such dispute in order to preserve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation effectiveness of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Price Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and .
(c) neither Purchaser nor Seller Any payment treated as an adjustment to the Purchase Price under Section 8.9 hereof shall file be reflected as an adjustment to the price allocated to the specific asset, if any, giving rise to the adjustment, and if any Tax Return or, in such adjustment does not relate to a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or specific asset such adjustment shall be allocated among the Final Allocation agreed Purchased Assets as acceptable to in accordance with this Agreementboth the Buyer and the Seller.
Appears in 1 contract
Tax Allocation. The Selling Group and Purchaser acknowledge that the purchase of the Company contemplated by this Agreement will be treated for income tax purposes as the purchase of the assets of the Company. The Purchase Price shall be allocated in accordance with Code Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller Treasury Regulations thereunder (and Purchaser in the manner set forth in this Section 37any similar provision of state or local law, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”as appropriate). No later than sixty Within twenty (6020) days after the Closing DateFinal Statement is finalized in accordance with Section 2.3, Purchaser shall provide Seller shall deliver to Purchaser with an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent in accordance with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands this Section 8.6 (the “Proposed Purchase Price Allocation”). No later than one hundred twenty Seller shall have fifteen (12015) days after from receipt of said Purchase Price Allocation to review and approve the Closing DatePurchase Price Allocation. To the extent Seller disagrees with the Purchase Price Allocation or any items therein, Seller and shall notify Purchaser in writing within such fifteen (15) day period as prescribed by the immediately preceding sentence. The parties shall thereafter endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser such dispute and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required they are unable within ten (10) Business Days, such dispute shall be resolved in accordance with the dispute resolution procedures provided for in Section 2.3. To the extent the Purchase Price is adjusted pursuant to this Agreement, the Purchase Price Allocation shall be adjusted in accordance with the methodology as agreed to by applicable lawthe parties herein or as finally determined by the Expert. The parties shall be bound by the finally agreed Purchase Price Allocation and the parties shall, (a) Seller and Purchaser agree to prepare shall cause their respective Affiliates to, report, act and file an IRS all Tax Returns (including Internal Revenue Service Form 8594 8594) in all respects and for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner all purposes consistent with the Final Allocationsuch allocation. No Party may take any position (whether in audits, (bTax Returns or otherwise) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement such allocation unless required to do so by a change in Law occurring after the date hereof, a closing agreement with an applicable Taxing Authority or the Final Allocation agreed to in accordance with this Agreementa final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NGL Energy Partners LP)
Tax Allocation. The Buyer and Seller shall cooperate in good faith in allocating the Adjusted Purchase Price and any other items properly treated as consideration for U.S. federal income Tax purposes among the Assets (including the assets of the Trust attributable to the Subject Trust Units), consistent with the principles of Section 1060 of the Code and the Treasury Regulations thereunder (the “Tax Allocation”). To the extent consistent with Code Section 1060 and any Treasury Regulations promulgated thereunder, the Tax Allocation shall be allocated consistent with the Purchase Price Allocation, as adjusted for any changes (including changes to the Allocated Values). The Tax Allocation shall be revised in accordance a manner consistent with Section 1060 of the Code among to take into account any further adjustments to the TimberlandsAdjusted Purchase Price pursuant to this Agreement, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved including any indemnification payments pursuant to Article XII. The Tax Allocation shall be reflected on a completed Internal Revenue Service Form 8594 (Asset Acquisition Statement under Section 1060) which will be timely filed separately by Seller and Purchaser in Buyer with the manner set forth in this Internal Revenue Service pursuant to the requirements of Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a1060(b) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent Code. Each Party agrees not to take any position inconsistent with the Code, shall incorporate, reflect and be consistent Tax Allocation for Income Tax purposes unless required by Law or with the Allocation Framework and to consent of the extent other Party; provided, however, that nothing contained herein shall prevent either Party from settling any proposed deficiency or adjustment by any Governmental Authority relating to the portion of the Purchase Price paid for the TimberlandsTax Allocation, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation neither Party shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, required to litigate before any court any proposed deficiency or adjustment by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final any Governmental Authority challenging such Tax Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this Agreement.
Appears in 1 contract
Tax Allocation. The (a) Annex C attached hereto sets forth an allocation of the Purchase Price shall be allocated in accordance with Section 1060 of the Code for U.S. federal income tax purposes among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, assets of Masco Cabinetry LLC and Masco Cabinetry Middlefield LLC and (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 equity interests of KraftMaid Services India Private Limited (the “Closing Tax Allocation FrameworkStatement”). No later than sixty (60) days after the date on which the Final Closing DateStatement becomes conclusive, but in no event earlier than ninety (90) days from Closing, Seller shall deliver to Purchaser an allocation of Buyer its IRS Form 8594 (and any corresponding form under applicable state or local law) allocating the Purchase Price (as adjusted pursuant to Section 2.06 and together with any other items of consideration properly taken into account under Section 1060 of the Code) among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent such assets in accordance with Section 1060 of the Code, shall incorporatethe applicable Treasury regulations promulgated thereunder and any similar provision of applicable state, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Nonlocal or non-Installment Sale Timberlands U.S. Law (the “Proposed AllocationSeller Form 8594”). No later than one hundred twenty (120) days after the Closing Date, The Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation Form 8594 shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, prepared in a manner consistent with the Final Allocationallocation set forth in the Closing Tax Allocation Statement, except (x) for any adjustments to reflect any adjustment to the Purchase Price made under this Agreement, (by) Seller the allocations of purchase price to real estate and Purchaser to property, plant and equipment shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to be determined in accordance with this Agreementthe Closing Real Estate Valuation and the Closing PPE Valuation, respectively and (z) the amount of the portion of the total purchase price attributable to the Preferred Stock shall be determined in accordance with the Closing Preferred Stock Valuation. Buyer, Seller and each of their respective Affiliates shall file all Tax Returns in a manner consistent with the Closing Tax Allocation Statement, the Closing Real Estate Valuation, the Closing PPE Valuation, the Closing Preferred Stock Valuation and the Seller Form 8594 and none of the parties will voluntarily take any position inconsistent with such statements in any inquiry, assessment, action, proceeding, audit or other similar event relating to Taxes, except upon a contrary final determination by any applicable Taxing Authority.
Appears in 1 contract
Tax Allocation. (i) The sum of the Purchase Price and all other items required to be taken into account for U.S. federal income tax purposes with respect to the purchase and sale of the Membership Interests pursuant to this Agreement (including, without limitation, the liabilities of the Acquired Companies) (collectively, the “Total Tax Consideration”) shall be allocated among the assets of the Acquired Companies as set forth on Exhibit C, which is intended to be in accordance with Section 751, 755 and 1060 of the Code among and the Timberlands, minerals, Timberlands Contractsapplicable Treasury Regulations, and the Personal Property using the methodology mutually approved by Seller any applicable state, local and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 foreign Tax Law (the “Tax Allocation FrameworkStatement”). No later The Tax Allocation Statement as attached hereto shall be final and binding on the parties hereto, other than sixty (60) days after for those components which are finally determined in the Closing Date, Seller shall deliver to Purchaser an allocation final determination of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal PropertyFinal Working Capital Surplus or Final Working Capital Deficiency, which allocation shall be reasonablesuch amounts, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not as so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be finally determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Partiesparties hereto. Each In the event that any adjustment to the aggregate purchase price is paid between the parties pursuant to the terms of Purchaser this Agreement (or there is otherwise an adjustment to the Total Tax Consideration hereunder), Buyer shall promptly provide the Seller Representative a revised Tax Allocation Statement and the principles of this Section 6.03(c) shall apply to each revised Tax Allocation Statement. In the event that any adjustment to the aggregate purchase price is paid between the parties pursuant to the terms of this Agreement (or there is otherwise an adjustment to the Total Tax Consideration hereunder), Buyer shall promptly provide the Seller Representative a revised Tax Allocation Statement and the principles of this Section 6.03(c) shall bear all fees apply to each revised Tax Allocation Statement.
(ii) Buyer, Sellers and costs incurred their respective Affiliates shall, unless otherwise required by it in connection with a final “determination” (within the determination meaning of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%Section 1313(a) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable lawCode), (aA) Seller and Purchaser agree to prepare and file an all Tax Returns, including all IRS Form Forms 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state other appropriate Tax Returns or local income Tax formforms, in a manner consistent with the Final AllocationTax Allocation Statement, (bas finally determined pursuant to this Section 6.03(c) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (cB) neither Purchaser nor Seller shall file take no position in any Tax Return orReturn, in a judicial or administrative proceeding, assert audit or maintain any Tax reporting position otherwise that is inconsistent with the Tax Allocation Statement, as finally determined pursuant to this Agreement or the Final Allocation agreed Section 6.03(c) (in each case, subject to adjustment in accordance with this Agreement.this
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CPG Newco LLC)
Tax Allocation. The SM Energy and Buyer shall use commercially reasonable efforts to agree to an allocation of the Purchase Price shall be allocated and any other items properly treated as consideration for U.S. federal income Tax purposes (the “Tax Consideration”) among the Assets in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37Treasury Regulations promulgated thereunder and, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on such allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants allowed under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local U.S. federal income Tax formLaw, in a manner consistent with the Allocated Values, within thirty (30) days after the date that the Final Settlement Statement is finally determined pursuant to Section 2.6 (the “Allocation”). If SM Energy and Buyer have not agreed to an Allocation within thirty (30) days after the date that the Final Settlement is finally determined pursuant to Section 2.6, then the matter shall be referred to KPMG LLP for final resolution in accordance with the procedures set forth in Section 2.6(c). Buyer and SM Energy shall use commercially reasonable efforts to update the Allocation in accordance with Section 1060 of the Code and the decision of KPMG LLP, if applicable, following any adjustment to the Tax Consideration pursuant to this Agreement. Buyer and SM Energy shall, and shall cause their Affiliates to, report consistently with the Allocation, as adjusted, on all Tax Returns, including Internal Revenue Service Form 8594 (Asset Acquisition Statement under Section 1060), which Buyer and SM Energy shall timely file with the IRS, and neither SM Energy nor Buyer shall take any position on any Tax Return that is inconsistent with the Allocation, as adjusted, unless otherwise required by applicable Law. Notwithstanding the preceding sentence, the Parties agree that it will not be inconsistent with the Allocation for (a) Buyer’s cost for the Project Assets to differ from the total amount allocated in the Allocation to reflect capitalized acquisition costs not included in the total amount allocated pursuant to this Section 2.8, (b) Seller and Purchaser shall adhere the amount realized by SM Energy to differ from the Final Allocation total amount allocated pursuant to this Section 2.8 to reflect transaction costs that reduce the amount realized for all Tax-related U.S. federal income Tax purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller Buyer’s and SM Energy’s cost and amount realized, respectively, to differ from the Purchase Price to take into account differences between the Purchase Price and the Tax Consideration, and any other payments to SM Energy treated as purchase price for the Assets for income Tax purposes, and any adjustments to the foregoing hereunder. Each of Buyer and SM Energy shall file promptly notify the other in writing upon the receipt of notice of any pending or threatened Tax Return or, in a judicial audit or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or assessment challenging the Final Allocation agreed to in accordance with this Agreementand upon the resolution thereof.
Appears in 1 contract
Tax Allocation. The Purchase Price Buyer shall prepare an allocation of the Upfront Payment, the Contingent Payment, and any amount that would be allocated treated as consideration for U.S. federal income tax purposes among the Acquired Assets and the restrictions set forth in Section 9.9 in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller U.S. Treasury regulations thereunder (and Purchaser in the manner set forth in this Section 37any similar provision of state, provided that such allocation methodology shall incorporatelocal or foreign Law, reflect and be consistent with (aas appropriate) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation FrameworkDraft Allocation”). No later than sixty Buyer shall deliver the Draft Allocation to Seller within ninety (6090) days after the Closing Date, . Seller shall deliver review the Draft Allocation and provide any objections to Purchaser an allocation of Buyer within fifteen (15) days after the Purchase Price among receipt thereof. In the Timberlandsevent Seller does not object to Buyer’s Draft Allocation, minerals, Timberlands Contracts, and Personal Property, which allocation such Draft Allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands final (the “Proposed Final Allocation”). No later than one hundred twenty (120) days after If Seller raises objections to the Closing DateDraft Allocation or any subsequent adjustments, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall Parties will negotiate in good faith to resolve such objection(s). Any subsequent adjustments to the dispute. If Purchaser and Seller fail to agree on such allocation before consideration for the date that is one hundred fifty (150) days following the Closing Date, such allocation Acquired Assets shall be determined, within a reflected in the Final Allocation as revised by Buyer and subject to Seller’s reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, comments in a manner consistent with this Section 8.5, the imputed interest provisions of the Code, Section 1060 of the Code, and the U.S. Treasury regulations thereunder (and any similar provisions of state, local or foreign Law, as appropriate). Seller, Buyer and their respective consolidated Affiliates shall report and file Tax Returns (including IRS Form 8594) in accordance with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser . Neither Buyer nor Seller shall file take any position (whether in audits, Tax Return orReturns, in a judicial or administrative proceeding, assert or maintain any Tax reporting position otherwise) that is inconsistent with this Agreement or the such Final Allocation agreed unless required to in accordance with this Agreementdo so by applicable Law.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Merrimack Pharmaceuticals Inc)
Tax Allocation. The Purchase Price If XXXXX shall be allocated have an election in accordance with effect under Section 1060 754 of the Code among for the Timberlandstaxable year of XXXXX that includes the Closing Date, mineralsthen as promptly as practicable, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser but in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No no event later than sixty (60) days after the Closing Date, Seller Purchaser shall prepare and deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands Seller a statement (the “Proposed AllocationValuation Statement”)) valuing the assets of XXXXX for purposes of (i) Treasury Regulation Section 1.743-1(d)(2) in determining Purchaser’s adjustment to the federal income tax basis of the assets of XXXXX and for purposes of performing Purchaser’s obligations pursuant to section 3 of Exhibit F to the XXXXX LLC Agreement, and (ii) Treasury Regulation Section 1.751-1(a)(2) in determining the character of Seller’s gain or loss, as the case may be, for federal income tax purposes in respect of the transactions contemplated by this Agreement. No later than one hundred twenty Seller shall have fifteen (12015) days after to review the Closing Date, Valuation Statement and shall notify Purchaser of any disputes with the valuation as set forth in the Valuation Statement. Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail to agree on any such allocation dispute before the date that is one hundred fifty sixty (15060) days following before the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation due date of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (tax returns that reflect the “Final Allocation”) shall be final and binding upon the Partiesvaluation. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) If Seller and Purchaser agree to prepare and file an IRS Form 8594 for or cannot resolve the disputed valuation before such other form or statement as may be required by applicable lawdate, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) then Seller and Purchaser shall adhere refer the dispute to PricewaterhouseCoopers LLP (the Final Allocation for “Accounting Referee”) to review and to determine the proper valuation (it being understood that in making such determination, the Accounting Referee shall be functioning as an expert and not as an arbitrator). The Accounting Referee shall deliver to Seller and Purchaser, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a determination of the valuation. This determination will be binding on the Parties and all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return tax returns filed by them after Purchaser, Seller and each of their Affiliates shall be prepared consistently with such valuation. The cost of such review and report shall be borne by Purchaser. Seller and Purchaser shall use commercially reasonable efforts to ensure that the Closing Date, including the determination Valuation Statement is not disputed by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this AgreementXXXXX.
Appears in 1 contract
Samples: Limited Liability Company Membership Interest Purchase Agreement (Oneok Inc /New/)
Tax Allocation. The Purchase Price (as determined for U.S. federal income Tax purposes), shall be allocated among the Assets in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller Treasury Regulations promulgated thereunder (and Purchaser in the manner set forth in this Section 37any similar provision of state, provided that such allocation methodology shall incorporatelocal or foreign Law, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”as appropriate). No later than Within sixty (60) days after the Closing DateClosing, Seller Buyer shall deliver to Purchaser an a draft allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Propertyfor Sellers’ approval, which allocation approval shall not be reasonable, based on fair market values, consistent with the Code, unreasonably withheld. Buyer and Sellers shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate work in good faith to resolve any disputes relating to the disputeallocation. If Purchaser Buyer and Seller fail Sellers are unable to agree on resolve any such allocation before the date that is one hundred fifty dispute within twenty (15020) days following of Buyer’s delivery of the Closing Datedraft allocation to Sellers, such dispute shall be resolved promptly by the Accounting Referee, the costs of which shall be borne equally by Buyer, on one hand, and Sellers, on the other hand. If the Adjusted Purchase Price is further adjusted pursuant to the provisions of this Agreement, the allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, adjusted in a manner consistent with the Final procedures set forth in this Section 3.6. Buyer and Sellers agree that they will file all Tax Returns (including IRS Form 8594) consistent with the allocation agreed to by Buyer and Sellers, or determined by the Accounting Referee (the “Allocation”). Neither Buyer nor Sellers shall take any Tax position inconsistent with the Allocation and neither Buyer nor Sellers shall agree to any proposed adjustment to the Allocation by any taxing authority without first giving the other party prior written notice. If, contrary to the intent of the Parties hereto as expressed in this Section 3.6, any taxing authority makes or proposes an allocation inconsistent with the Allocation, Sellers and Buyer shall cooperate with each other in good faith to contest such taxing authority’s allocation (bor proposed allocation); provided, however, that, after consultation with the Party (or Parties) Seller and Purchaser adversely affected by such allocation (or proposed allocation), the other Party (or Parties) hereto may file such protective claims or Tax Returns as may be reasonably required to protect its (or their) interests. Notwithstanding the foregoing, nothing contained herein shall adhere to prevent Buyer or Sellers from settling any proposed deficiency or adjustment by any taxing authority based upon or arising out of the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to sameAllocation, and (c) neither Purchaser Buyer nor Seller Sellers shall file be required to litigate before any Tax Return or, in a judicial court any proposed deficiency or administrative proceeding, assert or maintain adjustment by any Tax reporting position that is inconsistent with this Agreement or taxing authority challenging the Final Allocation agreed to in accordance with this AgreementAllocation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Azure Midstream Partners, Lp)
Tax Allocation. The Purchase Price shall be allocated Buyer and Seller agree to use commercially reasonable efforts to agree to an allocation of the purchase price, as determined for U.S. federal income Tax purposes, among the assets of the Company in accordance with this Section 2.4 and Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37Treasury Regulations thereunder. To facilitate such agreement, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) days as soon as reasonably practicable after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands Date (the “Proposed Allocation”). No but in no event later than one hundred and twenty (120) days after the Closing Date), Buyer shall prepare and deliver to Seller a schedule allocating such purchase price. Within thirty (30) days after the receipt of such proposed allocation, Seller and Purchaser shall endeavor provide written notice to agree on the Proposed AllocationBuyer of any proposed changes to such allocation or otherwise shall be deemed to have agreed with such allocation. In the event that If Seller and Purchaser have not so agreed by such date Purchaser proposes changes to Buyer’s proposed allocation, Buyer and Seller shall negotiate in good faith to resolve the disputeany such proposed changes. If Purchaser Buyer and Seller fail reach an agreement with respect to agree on such an allocation before the date that is one hundred fifty (150) days following the Closing Date, then such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with become the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The final allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) and, in the event there is an adjustment to such purchase price after the Allocation has been determined, the Allocation will be revised in accordance with the methodology set forth in this Section 2.4 to reflect such adjustment (the “Revised Allocation”). If Buyer and Seller are unable to reach an agreement on the Allocation or a Revised Allocation, then each Party shall be final entitled to report the transaction in the manner determined by such Party in its sole discretion. The Allocation or Revised Allocation, as applicable, will be final, binding and binding upon the Partiesconclusive on Buyer and Seller. Each of Purchaser Buyer and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an all Tax Returns (including IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state amended Tax Returns or local income Tax form, claims for refund) in a manner consistent with the Final Allocation or Revised Allocation, (b) as applicable, and neither Buyer nor Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including will take any federal, foreign, state, county or local income and franchise position inconsistent with such allocation on any Tax Return filed or otherwise, unless required to do so by them after applicable Law or a final “determination,” within the Closing Datemeaning of Section 1313(a)(1) of the Code; provided, including however, that nothing contained herein shall prevent Buyer or Seller from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the determination by Seller of Taxable gain Allocation or loss on the sale and the determination by Purchaser of its Tax basis with respect to sameRevised Allocation, as applicable, and (c) neither Purchaser Buyer nor Seller shall file be required to litigate before any court any proposed deficiency or adjustment by any Governmental Authority challenging the Allocation or Revised Allocation, as applicable. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened Tax Return oraudit or assessment challenging the Allocation or Revised Allocation, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this Agreementas applicable.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Tax Allocation. The Purchasers shall prepare an allocation of (i) the US Purchase Price shall be allocated (and a pro rata share of all other capitalized costs incurred in accordance connection with Section 1060 the Transactions) among the assets of the Code US Company, and (ii) the UK Purchase Price (and a pro rata share of all other capitalized costs incurred in connection with the Transactions) among the Timberlands, minerals, Timberlands Contractsassets of the UK Company on the basis of their relative fair market values, and the Personal Property using the methodology mutually approved by Seller and Purchaser shall consult in the manner set forth in this Section 37, provided that good faith with AMC with respect to such allocation. Purchasers shall deliver such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) to AMC within 30 days after the Closing Date. Any such allocation prepared by Purchasers in accordance with this Section 2.4 shall be binding upon Purchasers, Seller shall deliver to Purchaser an allocation each member of the Purchase Price among the TimberlandsCompany Group, minerals, Timberlands ContractsAMC, and Personal Propertytheir Affiliates, subject to the consent of AMC, which allocation shall not be reasonableunreasonably withheld, based on fair market valuesconditioned or delayed. If AMC does not consent to such proposed allocation, consistent AMC shall notify Purchasers in writing of such disagreement within 30 days after receipt of the proposed allocation. For a period of 30 days following US Purchaser’s receipt of any such notification, Representatives of AMC and Purchasers shall use their respective reasonable best efforts to resolve all disagreements with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and respect to the extent relating to proposed allocation through the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate joint consultation in good faith of AMC and Purchasers. If the parties cannot resolve any disputed item, an independent accounting firm mutually acceptable to AMC and the Purchasers shall resolve the dispute. If Purchaser and Seller fail to agree on such item by determining solely whether the allocation before the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected prepared by the PartiesPurchasers was reasonable. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firmfirm shall be borne equally by AMC and the Purchasers. Except to Purchasers, members of the extent otherwise required Company Group, and AMC shall, and shall cause their respective Affiliates to, report, act and file Tax Returns (including IRS Form 8594) in all respects and for all purposes consistent with any allocation prepared by applicable lawPurchasers and approved by AMC in accordance with this Section 2.4. AMC shall timely and properly prepare, (a) Seller execute, file and Purchaser agree deliver all such documents, forms and other information as Purchasers may reasonably request to prepare and file an IRS Form 8594 for such allocation. None of Purchasers, AMC, members of the Company Group, or such other form their Affiliates shall take any position (whether in audits, Tax Returns or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (botherwise) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed any allocation so prepared and approved unless required to in accordance with this Agreementdo so by applicable Law.
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Tax Allocation. The Purchase Price shall Parties to this Agreement agree that the amount of the total consideration transferred by Purchasers to Seller pursuant to this Agreement (the “Consideration”) is and the allocation of the Consideration will be allocated in accordance with Section 1060 the fair market value of the Code among assets and Liabilities transferred pursuant to this Agreement. The allocation of the Timberlands, minerals, Timberlands Contracts, Consideration in accordance with the fair market values of the assets and the Personal Property using the methodology mutually approved Liabilities transferred shall be provided by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with within [***] (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”[***]). No later than sixty (60) days after [***] following the Closing Date, and Purchasers shall have the right to review and raise any objections in writing to the proposed allocation during the [***] ([***])[***] period after Purchasers’ receipt thereof. If Purchasers do not notify Seller shall deliver to Purchaser an of a disagreement with the proposed allocation of during such [***] ([***])[***] period, the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which proposed allocation shall be reasonablebecome final. If Purchasers disagree with respect to any item in the allocation, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than one hundred twenty (120) days after the Closing Date, Seller and Purchaser shall endeavor to agree on the Proposed Allocation. In the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller Parties shall negotiate in good faith to resolve the dispute. If Purchaser and Seller fail the Parties are unable to agree on the allocation within [***] ([***])[***] after the commencement of such allocation before good faith negotiations (or such longer period as Seller and Purchasers may agree in writing), then the date parties shall refer such dispute to an independent internationally recognized accounting firm (“Independent Accountant”) at that is one hundred fifty (150) days following time to review the Closing Dateallocation, and make a determination as to the resolution of such allocation. The determination of the Independent Accountant regarding the allocation shall be determined, within a reasonable time and in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation delivered as soon as practicable following engagement of the total considerationIndependent Accountant, as agreed upon by Purchaser but in no event more than [***] ([***])[***] thereafter, and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final final, conclusive and binding upon the Parties. Each of Purchaser Seller and Purchasers, and Seller shall bear all fees and costs incurred by it in connection with the determination of revise the allocation of accordingly. Seller, on the total considerationone hand, except that and Purchasers on the Parties other hand, shall each pay fifty percent (50%) one-half of the fees cost of the Independent Accountant. The finalized allocation shall be binding on Seller and expenses of such accounting firm. Except Purchasers for all Tax reporting purposes, and Seller and Purchasers agree to the extent otherwise refrain from taking any position inconsistent therewith unless required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for Law or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the final determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this AgreementTaxing Authority.
Appears in 1 contract
Tax Allocation. The Purchase Price shall Adjusted Closing Payment payable to Seller, together with all assumed liabilities and other capitalized costs for federal income Tax purposes, will be allocated among the Companies and the assets of the Companies for all Tax purposes in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using Treasury Regulations promulgated thereunder and the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation FrameworkMethodology”). No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands on Schedule 7.6 (the “Proposed Allocation”). No later than one hundred twenty thirty (12030) days after the determination of the final determination of the Adjusted Closing DatePayment pursuant to Section 2.4, Purchaser will provide Seller with a draft schedule of the Allocation prepared in accordance with the Allocation Methodology (the “Draft Allocation Schedule”). If Seller objects to any item on such Draft Allocation Schedule, Seller and shall, within thirty (30) days after delivery of such Draft Allocation Schedule, notify Purchaser shall endeavor to agree on the Proposed Allocation. In the event in writing that Seller and Purchaser have not so agreed by objects, describing with reasonable detail any such date item, including the factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Purchaser and Seller shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If such notice of objection is not so duly delivered, or if Purchaser and Seller are able to agree on a resolution on all disputed items in the disputeDraft Allocation Schedule, then the Draft Allocation Schedule, as initially prepared by Purchaser pursuant to this Section 7.6 or as modified in accordance with such resolution, shall be the final determination of the Allocation (the “Final Allocation Schedule”). If Purchaser and Seller fail are unable to agree on such allocation before a resolution to any disputed items within ten (10) Business Days after the date that is one hundred fifty expiration of the foregoing thirty (15030) days following the Closing Dateday period, such allocation unresolved disputed items shall be determined, within a reasonable time and submitted to the Accountant for resolution in a manner that incorporates, reflects and is consistent accordance with the Allocation Frameworkdispute resolution procedures set forth in Section 2.4, by an independentmutatis mutandis (provided that, nationally recognized firm of accountants mutually selected by the Parties. The allocation any fees and expenses of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs Accountant incurred by it in connection with the determination of the allocation Final Allocation Schedule pursuant to this Section 7.6 shall be borne 50% by Purchaser and 50% by the Seller), which resolution shall be made in accordance with the provisions of the total considerationfirst sentence of this Section 7.6, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except be limited to the extent otherwise required remaining unresolved disputed items and shall be conclusive and binding upon the Parties. In such case, the Draft Allocation Schedule, as modified by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, the Accountant in a manner consistent accordance with the Final Allocationimmediately preceding sentence, (b) Seller and Purchaser shall adhere to be the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this AgreementSchedule.
Appears in 1 contract
Tax Allocation. The Purchase Price shall be allocated in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using the methodology mutually approved by Seller and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than sixty (60) days after the Closing Date, Seller shall deliver to Purchaser an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contracts, and Personal Property, which allocation shall be reasonable, based on fair market values, consistent with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands (the “Proposed Allocation”). No later than Within one hundred twenty (120) days after the Closing DateClosing, Seller and Purchaser shall endeavor deliver to agree RI a schedule allocating the portion of the Total Purchase Price attributed on Schedule 2.2(a) to Rexam Closures LLC among the Proposed assets of Rexam Closures LLC, allocating the portion of the Total Purchase Price attributed on Schedule 2.2(a) to Rexam Closure Systems LLC among the assets of Rexam Closure Systems LLC and allocating the portion of the Total Purchase Price attributed on Schedule 2.2(a) to the assets of Rexam Guernsey and Rexam UK set forth on Exhibit 2 among such assets (the “Allocation”). In The Allocation shall (i) be reasonable and prepared in accordance with Section 1060 of the event that Seller Code, and Purchaser have not so agreed by such date the regulations thereunder and (ii) include an allocation between the real property and the tangible personal property of Rexam Closures LLC and Rexam Closure Systems LLC. If RI approves of the Allocation, it shall promptly return an executed copy thereof to Purchaser. If RI in good faith disapproves of the Allocation, Purchaser and Seller shall RI agree to promptly negotiate in good faith an allocation agreeable to resolve the disputeboth Purchaser and RI. If Purchaser and Seller fail RI are unable to agree on such allocation before an allocation, the date that is one hundred fifty (150) days following the Closing Date, such allocation shall be determined, within a reasonable time and procedures set forth in a manner that incorporates, reflects and is consistent with the Allocation Framework, by an independent, nationally recognized firm of accountants mutually selected by the Parties. The allocation of the total consideration, as agreed upon by Purchaser and Seller or determined by a firm of accountants under this Section 37, (the “Final Allocation”2.3(d) shall be final and binding upon used, mutatis mutandis, with the disagreement by RI being treated as the “Selling Parties. Each of ’ Objection.” Purchaser and Seller shall bear all fees the Selling Parties agree to adopt and costs incurred utilize the amounts so allocated (as agreed by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%or as determined by the CPA Firm) for purposes of the fees filing Internal Revenue Service Form 8594 and expenses all federal, state, local and other Tax Returns filed by them and that they will not voluntarily take any position inconsistent therewith upon examination of any such accounting firm. Except Tax Return, in any claim, in any litigation or otherwise with respect to the extent such Tax Returns, unless otherwise required by applicable law, (a) Seller to do so pursuant to Applicable Law. The Selling Parties and Purchaser agree to prepare and file an IRS provide the other promptly with any other information required to complete Internal Revenue Service Form 8594 for or such 8594. Notwithstanding any other form or statement as may be required by applicable lawprovisions of this Agreement, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser foregoing agreement shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after survive the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to same, and (c) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Final Allocation agreed to in accordance with this Agreementwithout limitation.
Appears in 1 contract
Tax Allocation. (a) The Purchase Price (plus assumed liabilities to the extent properly taken into account under the Code and the Treasury regulations promulgated thereunder), shall be allocated among the Assets of the Company in accordance with Section 1060 of the Code among the Timberlands, minerals, Timberlands Contracts, and the Personal Property using Treasury regulations promulgated thereunder, as agreed upon by the methodology mutually approved by Seller Buyer and Purchaser in the manner set forth in this Section 37, provided that such allocation methodology shall incorporate, reflect and be consistent with (a) the allocation set forth in Section 2.1, (b) the Value Table (other than the per acre values set forth therein) and (c) Exhibit 48 (the “Allocation Framework”). No later than Sellers within sixty (60) days after the Closing DateClosing, Seller shall deliver to Purchaser which agreement will be based on an allocation of the Purchase Price among the Timberlands, minerals, Timberlands Contractsindependent appraisal, and Personal Property, which allocation shall may be reasonable, based on fair market values, consistent revised in accordance with the Code, shall incorporate, reflect and be consistent with the Allocation Framework and to the extent relating to the portion of the Purchase Price paid for the Timberlands, set forth an allocation between the Installment Sale Timberlands and the Non-Installment Sale Timberlands following sentence (the “Proposed Allocation”). No later than one hundred twenty The Buyer and Sellers’ Representative agree to revise the Allocation to reflect any Contingent Payments, Non-US Licensing Earn-Out Payments and Run Rate Contingent Payments made pursuant to Section 1.04 above (120in each case, excluding any amounts properly characterized as interest for federal income Tax purposes).
(b) days after To the Closing Date, Seller extent Buyer and Purchaser shall endeavor to Sellers’ Representative cannot agree on how to prepare or revise the Proposed Allocation in accordance with Section 1.06(a) hereof, then the Buyer and the Sellers’ Representative shall attempt to determine an appropriate Allocation. In , and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the event that Seller and Purchaser have not so agreed by such date Purchaser and Seller shall negotiate in good faith to resolve the disputeparties hereto. If Purchaser the Sellers’ Representative and Seller fail the Buyer are unable to agree reach a resolution with such effect within 20 Business Days, the Sellers’ Representative and the Buyer shall submit the items remaining in dispute for resolution to the Independent Accounting Firm, which shall, within 30 Business Days after such submission, determine and report to the Sellers’ Representative and the Buyer upon such remaining disputed items, and such report shall be final, binding and conclusive on the Sellers and the Buyer. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Sellers’ Representative and the Buyer in the same proportion that the aggregate amount of such allocation before remaining disputed items so submitted to the date Independent Accounting Firm that is one hundred fifty unsuccessfully disputed by each such party (150as finally determined by the Independent Accounting Firm) days following bears to the Closing Datetotal amount of such remaining disputed items so submitted.
(c) The Buyer and the Sellers’ Representative agree to (i) be bound by the Allocation, such allocation shall be determined, within a reasonable time and (ii) act in a manner that incorporates, reflects and is consistent accordance with the Allocation Framework, by an independent, nationally recognized firm in the preparation of accountants mutually selected by all financial statements and the Parties. The allocation filing of all Tax Returns (including filing Form 8594 with their United States federal income Tax Return for the taxable year that includes the date of the total considerationClosing) and in the course of any Tax audit, as agreed upon by Purchaser and Seller Tax review or determined by a firm of accountants under this Section 37, (the “Final Allocation”) shall be final and binding upon the Parties. Each of Purchaser and Seller shall bear all fees and costs incurred by it in connection with the determination of the allocation of the total consideration, except that the Parties shall each pay fifty percent (50%) of the fees and expenses of such accounting firm. Except to the extent otherwise required by applicable law, (a) Seller and Purchaser agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by applicable law, rule or regulation, and any comparable state or local income Tax form, in a manner consistent with the Final Allocation, (b) Seller and Purchaser shall adhere to the Final Allocation for all Tax-related purposes including any federal, foreign, state, county or local income and franchise Tax Return filed by them after the Closing Date, including the determination by Seller of Taxable gain or loss on the sale and the determination by Purchaser of its Tax basis with respect to samelitigation relating thereto, and (ciii) neither Purchaser nor Seller shall file any Tax Return or, in a judicial or administrative proceeding, assert or maintain any Tax reporting take no position that is and cause their Affiliates to take no position inconsistent with this Agreement or the Final Allocation agreed for income Tax purposes, including United States federal and state income Tax and foreign income Tax, unless otherwise required pursuant to in accordance an agreement with this Agreementthe IRS.
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