DUPLICATION, ANY LOAN PAYOFF AMOUNT)
= THE CLOSING
PAYMENT.
(C)
ALLOCATION OF CONSIDERATION.
BUYER AND SELLER SHALL COOPERATE
WITH EACH OTHER IN THE PREPARATION OF AN ALLOCATION OF THE AGGREGATE PURCHASE
PRICE (INCLUDING THE ASSUMED LIABILITIES TO THE EXTENT PROPERLY TAKEN INTO
ACCOUNT UNDER THE CODE AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER)
AMONG THE PURCHASED ASSETS, AND USE THEIR BEST EFFORTS TO COMPLETE SUCH
ALLOCATION (THE "ALLOCATION") IN A MANNER MUTUALLY ACCEPTABLE TO THE PARTIES
PRIOR TO THE CLOSING OR BY SUCH EARLIER DATE AS MAY BE REQUIRED OR REQUESTED BY
THE SEC IN CONNECTION WITH THE PREPARATION OF THE PROXY STATEMENT, WHICH
ALLOCATION SHALL BE BINDING UPON BUYER AND SELLER.
IN THE EVENT THAT BUYER AND
SELLER ARE UNABLE TO AGREE UPON THE ALLOCATION DURING THE PERIOD
5
SPECIFIED ABOVE, SUCH DISAGREEMENT SHALL BE SUBMITTED TO AN ARBITRATOR FOR
RESOLUTION EITHER (I) AFTER THE CLOSING OR (II) TO THE EXTENT COMPLETION OF THE
ALLOCATION IS REQUIRED OR REQUESTED BY THE SEC IN CONNECTION WITH THE
PREPARATION OF THE PROXY STATEMENT, AS PROMPTLY AS PRACTICABLE AND, IN ANY
EVENT, PRIOR TO THE FILING OR MAILING OF THE PROXY STATEMENT.
IN RENDERING ITS
DECISION, THE ARBITRATOR SHALL TAKE INTO ACCOUNT THE RELEVANT SECTIONS OF THE
CODE, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, AND THE RELATIVE
FAIR MARKET VALUE OF EACH OF THE PURCHASED ASSETS.
NOT LATER THAN THIRTY (30)
DAYS PRIOR TO THE FILING OF THEIR RESPECTIVE FORMS 8594 RELATED TO THE
TRANSACTIONS, EACH OF BUYER AND SELLER SHALL DELIVER TO THE OTHER A COPY OF ITS
FORM 8594.
EACH OF BUYER AND SELLER AGREES TO (I) BE BOUND BY THE ALLOCATION,
(II) ACT IN ACCORDANCE WITH THE ALLOCATION IN THE PREPARATION OF ALL FINANCIAL
STATEMENTS AND THE FILING OF ALL TAX RETURNS (INCLUDING WITHOUT LIMITATION
FILING FORM 8594 WITH THEIR UNITED STATES FEDERAL INCOME TAX RETURN FOR THE
TAXABLE YEAR THAT INCLUDES THE CLOSING DATE) AND IN THE COURSE OF ANY TAX AUDIT,
TAX REVIEW OR TAX LITIGATION RELATED THERETO, AND (III) TAKE NO POSITION AND
CAUSE OR PERMIT THEIR RESPECTIVE AFFILIATES TO TAKE NO POSITION INCONSISTENT
WITH THE ALLOCATION FOR INCOME TAX PURPOSES, INCLUDING UNITED STATES FEDERAL AND
STATE INCOME TAX, AND FOREIGN INCOME TAX, UNLESS OTHERWISE REQUIRED PURSUANT TO
A "DETERMINATION" WITHIN THE MEANING OF SECTION 1313(A) OF THE CODE.
IN THE
EVENT THAT THE ALLOCATION IS DISPUTED BY ANY GOVERNMENTAL ENTITY, THE PARTY
RECEIVING NOTICE OF SUCH DISPUTE SHALL PROMPTLY NOTIFY AND CONSULT WITH THE
OTHER PARTY AND KEEP THE OTHER PARTY APPRISED OF MATERIAL DEVELOPMENTS
CONCERNING RESOLUTION OF SUCH DISPUTE.
1.5
DELIVERY OF ESTIMATED BALANCE SHEET; POST-CLOSING ADJUSTMENT.
(A)
AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE EXPECTED CLOSING
DATE, SELLER SHALL DELIVER TO BUYER (I) AN ESTIMATED BALANCE SHEET OF THE
PURCHASED BUSINESS, CALCULATED IN ACCORDANCE WITH GAAP AND IN A MANNER
CONSISTENT WITH THE PURCHASED BUSINESS FINANCIAL STATEMENTS AND SETTING FORTH
SELLER'S GOOD FAITH ESTIMATE, AS OF THE CLOSING DATE, OF ITS CURRENT ASSETS AND
CURRENT LIABILITIES (THE "ESTIMATED CLOSING BALANCE