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

Tax Treatment; Purchase Price Allocation. Purchaser and Seller agree that, for U.S. federal and applicable state income Tax purposes, the sale of the Purchased Interests is properly treated as a sale of all of the assets of the Company and its Subsidiary. Purchaser and Seller agree to cooperate in the preparation of a joint allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance with Section 1060 of the Code (the “Purchase Price Allocation Schedule”). If Purchaser and Seller are unable to agree on the Purchase Price Allocation Schedule within sixty (60) days following the Closing Date, then any remaining disputed matters will be finally and conclusively determined by the Accounting Arbitrator, the fees and expenses of which shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Accounting Arbitrator. Notwithstanding the foregoing, Purchaser and Seller agree that for purposes of the Purchase Price Allocation Schedule, the principles set forth in Exhibit C shall apply, and the Accounting Arbitrator shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective Tax Returns (including IRS Form 8594) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used to create the Purchase Price Allocation Schedule.

Tax Treatment; Purchase Price Allocation. Purchaser (a) Buyer and Seller agree that, acknowledge that the transactions under this Agreement will be treated for U.S. federal and applicable state income Tax purposes, the sale of the Purchased Interests is properly treated purposes as a purchase and sale of all of the assets of the Company and its Subsidiary. Purchaser that such purchase and sale constitutes an applicable asset acquisition pursuant to Section 1060 of the Code. (b) Seller agree shall engage a firm experienced in such matters and reasonably acceptable to cooperate Buyer to conduct an appraisal and determine the fair market value of the assets of the Company and the Subsidiaries and an allocation (the “Allocation”) of the Base Purchase Price, as adjusted hereunder, among the assets of the Company and the Subsidiaries for Tax purposes in the preparation of a joint allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance manner consistent with Section 1060 of the Code and the regulations promulgated thereunder (the “Purchase Price Allocation ScheduleTreasury Regulations”). If Purchaser and Seller are unable to agree on the Purchase Price Allocation Schedule within sixty (60) days following the Closing Date, then any remaining disputed matters will be finally and conclusively determined by the Accounting Arbitrator, the fees and expenses of which shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which fair market values of such assets. Buyer and Seller agree that, in general, the portion amounts allocated to the assets that constitute tangible personal property of the contested amount not awarded to each party bears to Company or the amount actually contested by Subsidiaries shall approximate the replacement cost of such partyassets, as determined by the Accounting Arbitratorappraiser. Notwithstanding The cost of such appraisal shall be borne one-half by Seller and one-half by Buyer. The parties shall instruct the foregoingappraiser that the Allocation should be final within 90 days after the Closing, Purchaser and shall use commercially reasonable efforts to cooperate with the appraiser and each other to achieve such goal. Seller and Buyer agree that for purposes of to allocate the Purchase Price Allocation Schedule, among such assets and report the principles set forth in Exhibit C shall apply, and the Accounting Arbitrator shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective transactions contemplated hereby on all Tax Returns (including IRS including, but not limited to Form 85948594 and the reporting under Sections 751 and 755 of the Code and the Treasury Regulations thereunder) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used values of such assets as so appraised. Neither Seller nor Buyer shall take, or shall permit any of their respective Affiliates to create take, any position inconsistent with the Purchase Price Allocation Scheduleon any Tax Return or otherwise, unless required to do so by applicable Law or a “determination,” within the meaning of Section 1313(a)(1) of the Code.

Tax Treatment; Purchase Price Allocation. As promptly as practicable after the Closing Date but no later than forty five (45) days after the Closing, Purchaser and shall deliver to Seller agree that, for U.S. federal and applicable state income Tax purposes, the sale of the Purchased Interests is properly treated as a sale of all of the assets of the Company and its Subsidiary. Purchaser and Seller agree to cooperate in the preparation of a joint allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance with Section 1060 of the Code statement (the “Purchase Price Allocation Schedule”), allocating the purchase price (and all other amounts required to be included in the purchase price for U.S. federal and applicable state income tax purposes) among the assets of the Companies in accordance with the principles reflected in Exhibit B. If within thirty (30) days after the delivery of the Purchase Price Allocation Schedule, Seller shall notify Purchaser in writing that Seller objects to the allocation set forth in the Purchase Price Allocation Schedule (which objection may be based solely on the failure to allocate in accordance with this Section 1.8 and Exhibit B), Purchaser and Seller shall use commercially reasonable efforts to resolve such dispute within twenty (20) days. If In the event that Purchaser and Seller are unable to agree on resolve such dispute within such twenty (20)-day period, then Purchaser and Seller shall refer the matter to the Independent Auditor in accordance with Section 1.5(b); except that the sole issue presented to the Independent Auditor shall be the conformance of the disputed allocations with this Section 1.8 and Exhibit B. Purchaser and Seller shall be bound by the Purchase Price Allocation Schedule, as adjusted, for purposes of determining any Taxes and shall act in accordance with the Purchase Price Allocation Schedule within sixty in the preparation, filing and audit of any Tax Return (60) days following the Closing Date, then any remaining disputed matters will be finally and conclusively determined by the Accounting Arbitrator, the fees and expenses of which shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Accounting Arbitratorincluding IRS Form 8594). Notwithstanding the foregoing, Purchaser and Seller agree that for For purposes of the Purchase Price Allocation Schedule, if there is an adjustment to the principles set forth in Exhibit C shall applypurchase price pursuant to any provision of this Agreement, and the Accounting Arbitrator adjustment shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective Tax Returns (including IRS Form 8594) allocated in accordance with such allocation schedule Section 1060 of the Code and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used to create the Purchase Price Allocation ScheduleRegulations thereunder.

Tax Treatment; Purchase Price Allocation. Purchaser For federal income Tax purposes (and, where applicable, state and local income Tax purposes), Buyer, Seller and the Partnership agree to treat the Pre-Closing Distribution to Seller as a distribution from the Partnership to Seller pursuant to Code Section 731. For federal income Tax purposes (and, where applicable, state and local income Tax purposes), Buyer and Seller agree thatto treat the purchase of the Partnership Interest contemplated by this Agreement as an acquisition of assets in the manner described in Situation 1 of Revenue Ruling 99-6, 1999-1 C.B. 423, provided, however, if within sixty (60) Business Days following the Closing Date, Buyer notifies Seller that Buyer will elect to treat itself as an association taxable as a corporation for U.S. federal and applicable state income Tax purposespurposes effective on a date that precedes the Closing Date, then (i) Buyer and Seller shall treat the sale purchase of the Purchased Interests is properly treated Partnership Interest contemplated by this Agreement as a transfer of an interest in a partnership by sale or exchange as described in Code Section 743(b); (ii) the Partnership shall make or otherwise have in effect an election pursuant to Code Section 754 for its taxable year that includes the Closing Date; and (iii) Buyer and Seller agree that the purchase of all the Partnership Interest shall not terminate the Partnership for federal income Tax purposes pursuant to Code Section 708(b)(1)(A) or Code Section 708(b)(1)(B). The Purchase Price, as increased by the applicable liabilities of the Partnership and other relevant items, shall be allocated for income Tax purposes among the Mexican Subsidiary Shares and the assets of the Company and its Subsidiary. Purchaser Partnership in accordance with the methodology set forth on Exhibit B. Buyer and Seller agree to cooperate shall follow and use such allocation in the preparation of a joint allocation schedule which allocates all Tax Returns or similar reports filed by them with any Tax Authority, including any disclosures required to be made to the Aggregate Purchase Price among such acquired assets in accordance with United States Internal Revenue Service by the parties under the provisions of Section 1060 of the Code (the “Purchase Price Allocation Schedule”). If Purchaser and Seller are unable to agree on the Purchase Price Allocation Schedule within sixty (60) days following the Closing Date, then or any remaining disputed matters will be finally and conclusively determined by the Accounting Arbitrator, the fees and expenses of which shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Accounting Arbitrator. Notwithstanding the foregoing, Purchaser and Seller agree that for purposes of the Purchase Price Allocation Schedule, the principles set forth in Exhibit C shall apply, and the Accounting Arbitrator shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective Tax Returns (including IRS Form 8594) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used to create the Purchase Price Allocation ScheduleTreasury Regulations promulgated thereunder.

Tax Treatment; Purchase Price Allocation. Purchaser The Buyer and Seller the Sellers agree that, that the purchase and sale of the Metalex Securities is intended for U.S. federal and applicable state income Tax purposes, the sale of the Purchased Interests is properly tax purposes to be treated as a the purchase and sale of all of the assets of Metalex. With respect to the Company and its Subsidiary. Purchaser and Seller agree to cooperate in the preparation of a joint allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance with Section 1060 purchase of the Code (the “Purchase Price Allocation Schedule”). If Purchaser and Seller are unable to agree on the Purchase Price Allocation Schedule Metalex Securities, within sixty (60) days following of the Closing Datefinal determination of the Working Capital Amount pursuant to the terms and conditions hereof, then any remaining disputed matters will be finally the Buyer shall provide to the Sellers a schedule allocating the Base Purchase Price among the assets of Metalex for review and conclusively determined approval by the Accounting ArbitratorSellers, the fees and expenses of which shall be allocated prepared in accordance with the applicable provisions of the Code and the allocation methodology set forth on Exhibit 11.7. Following receipt thereof, the Sellers shall have a period of twenty (20) days to provide the Buyer with a statement of any disputed items with respect to such allocation. In the event the Sellers provide such statement and the Sellers and the Buyer are unable to reach agreement with respect to any disputed items within a period of twenty (20) days after the Buyer’s receipt of such statement, all such disputed items shall be paid by Purchaser, on submitted to the one handIndependent Accounting Firm for final resolution, and Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears Buyer shall pay all fees in connection therewith owed to the amount actually contested by such party, as determined Independent Accounting Firm. The allocation ultimately agreed upon by the Accounting ArbitratorBuyer and the Sellers under this Section 11.7 shall be referred to herein as the “Metalex Purchase Price Allocation Schedule”. Notwithstanding The parties hereto shall make appropriate adjustments to the foregoing, Purchaser and Seller Metalex Purchase Price Allocation Schedule to reflect changes in the Base Purchase Price. The parties hereto agree that for all Tax reporting purposes of to report the transactions contemplated by this Agreement in accordance with the Metalex Purchase Price Allocation Schedule, as adjusted pursuant to the principles set forth in Exhibit C shall applypreceding sentence, and the Accounting Arbitrator shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective Tax Returns (including IRS Form 8594) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action proceeding inconsistent with such allocations and schedule unless required by a determination of the applicable Governmental Body that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used to create the Purchase Price Allocation Schedulefinal.

Tax Treatment; Purchase Price Allocation. Purchaser and Seller (i) The parties hereto agree that, that for U.S. federal and applicable state income Tax purposes, the sale purchase of the Purchased Company Interests is properly by Purchaser shall be treated as a taxable purchase by Purchaser, and taxable sale by Seller, of all of the assets of the Company. The parties agree to account for the transactions contemplated by this Agreement in a manner consistent with this Section 5.3(j)(i) (including the filing of all Tax Returns and the taking of all Tax positions), except as otherwise required by a “determination” as defined in Code Section 1313. (ii) Purchaser, Seller, and the Company, agree that the Purchase Price (plus any liabilities or other items treated as purchase price for U.S. federal income tax purposes) will be allocated to the assets of the Company for U.S. federal income tax purposes in a manner consistent with Code Section 1060 and its Subsidiarythe methodology set forth on Section 5.3 of the Disclosure Schedule. Purchaser and will deliver to Seller agree to cooperate in a statement setting forth the preparation of a joint proposed allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance with Section 1060 of the Code (the “Purchase Price Allocation ScheduleProposed Allocation”). If Seller has any objection to the Proposed Allocation, Seller will deliver to Purchaser a statement setting forth its objections and suggested adjustments within twenty days after the delivery of the Proposed Allocation, otherwise, Seller are unable shall be deemed to agree on have accepted the Purchase Price Allocation Schedule within sixty (60) days following the Closing Date, then Proposed Allocation. Seller and Purchaser will negotiate in good faith to resolve any such objection. Any remaining disputed matters will dispute among Seller and Purchaser shall be finally and conclusively determined resolved by the Accounting ArbitratorFirm (in accordance with the procedures set forth in Section 1.6(d)); provided, that the fees and expenses of which Accounting Firm’s determination shall be allocated limited to be paid by whether Seller’s or Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which the portion ’s position with respect to each of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Accounting Arbitrator. Notwithstanding the foregoing, Purchaser and Seller agree that for purposes of the Purchase Price Allocation Schedule, remaining points in dispute better reflects the principles set forth in Exhibit C shall applythis Section 5.3(j)(ii). The Proposed Allocation, as adjusted to reflect any agreed-upon changes (the “Final Allocation”), will be binding upon the Seller and Purchaser for all income Tax purposes; provided, however, that the Accounting Arbitrator shall Final Allocation may be required adjusted upon any adjustment to follow the purchase price (as defined for U.S. federal income tax purposes) in accordance with the principles set forth therein in resolving any such disputethis Section 5.3(j)(ii). Purchaser and Seller shall each The parties agree to file its respective all Tax Returns (including IRS Form 8594) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used Final Allocation, and no party will take any position inconsistent therewith on any Tax Return or in connection with any Tax Proceeding unless required pursuant to create a final “determination” within the meaning of Section 1313(a) of the Code. If any Governmental Body disputes the Final Allocation in connection with any audit, examination or other Tax Proceeding, the party involved in such Tax Proceeding will promptly notify the other parties of the existence and nature of such dispute, and any resolution thereof. Purchaser, the Company and Seller agree that the amount of Purchase Price allocable to the capital stock of the Company Subsidiary in the Allocation Scheduleshall be a nominal amount as reasonably determined by Purchaser and Seller in good faith. The Final Allocation shall be revised to appropriately take into account any other payments made pursuant to this Agreement (including the Earnout Payment), and Purchaser shall deliver to Seller an amended Final Allocation reflecting any such revisions.

Tax Treatment; Purchase Price Allocation. Purchaser The Parties agree that the purchase and Seller agree that, for U.S. federal and applicable state income Tax purposes, the sale of the Purchased Target Interests is properly intended to be treated as a purchase and sale of all of the assets of the Company for U.S. federal Income Tax purposes (and its Subsidiary. Purchaser applicable state and Seller agree local Tax purposes) and no Party shall take any position in any Tax Return, in any Tax examination, audit, claim or similar Proceeding that is inconsistent with such treatment; provided, that Buyer’s obligation to cooperate in act consistently with such position is contingent on the preparation of a joint allocation schedule which allocates the Aggregate Purchase Price among such acquired assets in accordance with Section 1060 accuracy of the Code (the “Purchase Price Allocation Schedule”representation in Section 7.12(n). If Purchaser and Seller are unable to agree on the Purchase Price Allocation Schedule within sixty Within thirty (6030) days following the Closing Datefinal determination of the Final Purchase Price, then Seller shall prepare and provide to Buyer an allocation of the Final Purchase Price and any remaining disputed matters will be finally and conclusively determined by other items that are treated as consideration for U.S. federal Income Tax purposes among the Accounting Arbitratorsix categories of assets specified in Part II of IRS Form 8594 (Asset Acquisition Statement under Section 1060) (the “Allocation”). Buyer shall notify Seller in writing within thirty (30) days of receipt of the Allocation of any comments to the Allocation. If Buyer does not deliver any written notice of objection to the Allocation within such thirty (30)-day period, the fees Allocation shall be final, conclusive and expenses binding on the Parties. If a written notice of which objection is timely delivered to Seller, Xxxxxx and Xxxxx will negotiate in good faith for a period of twenty (20) days to resolve such dispute (the “Allocation Dispute Resolution Period”). If, during the Allocation Dispute Resolution Period, Seller and Buyer resolve their differences in writing as to any disputed amount, (a) such resolution shall be deemed final and binding with respect to such amount for the purpose of determining that component of the Allocation, (b) any subsequent adjustments to Final Purchase Price for U.S. federal Income Tax purposes shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Accounting Arbitrator. Notwithstanding the foregoing, Purchaser and Seller agree that for purposes of the Purchase Price Allocation Schedule, the principles set forth in Exhibit C shall apply, and the Accounting Arbitrator shall be required to follow the principles set forth therein in resolving any such dispute. Purchaser and Seller shall each file its respective Tax Returns (including IRS Form 8594) in accordance with such allocation schedule and shall not take any position on any Tax Return or during the course of any audit or other Action that is inconsistent therewith, unless required otherwise by applicable Tax law. The Purchase Price Allocation Schedule shall be adjusted as necessary to reflect adjustments to the Aggregate Purchase Price pursuant to Section 2.6 in a manner consistent with the principles used Allocation as finally determined, (c) the Parties shall report consistently with this Section 2.9 in all Tax Returns, including Internal Revenue Service (“IRS”) Form 8594 (or applicable successor form) and any other information or Tax Returns or supplement thereto required to create be filed under Section 1060 of the Purchase Price Code, which each Party shall timely file with the IRS, and (d) no Party shall take any position in any Tax Return, in any Tax examination, audit, claim or similar Proceeding that is inconsistent with the Allocation, except that no Party shall be unreasonably impeded in its ability and discretion to negotiate, compromise or settle any Tax examination, audit, claim or similar proceedings in connection with the intended tax treatment or Allocation. Notwithstanding the foregoing, if Seller and Buyer cannot mutually agree on the Allocation Schedule(after good faith efforts to do so), each Party shall be entitled to determine its own allocation and file its IRS Form 8594 consistent therewith.