AS A SALE OF
ALL THE ASSETS OF THE COMPANY (INCLUDING ITS OWNERSHIP INTERESTS IN, BUT NOT THE
ASSETS OF, WINCHESTER AND THE OTHER SUBSIDIARIES) TO BUYER, AND A PURCHASE OF
THE COMPANY'S ASSETS BY BUYER, FOR THE ADJUSTED PURCHASE PRICE AND THE
ASSUMPTION OF LIABILITIES OF THE COMPANY, FOLLOWED BY THE NONTAXABLE
DISTRIBUTION OF THE ADJUSTED PURCHASE PRICE BY THE COMPANY TO THE COMPANY
PARTNERS. THE PARTIES AGREE NOT TO TAKE ANY POSITION INCONSISTENT WITH SUCH
INTENDED TEXAS TAX CONSEQUENCES.
(3)
BUYER AND PFC SHALL COOPERATE AS PROVIDED IN THIS
SECTION 7.7(C)(3) TO DETERMINE (IN ACCORDANCE WITH ALL APPLICABLE TREASURY
REGULATIONS PROMULGATED UNDER SECTION 1060 OF THE CODE) THE ALLOCATION OF THE
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ADJUSTED PURCHASE PRICE AND, TO THE EXTENT INCLUDED IN THE AMOUNT REALIZED FOR
FEDERAL INCOME TAX PURPOSES, LIABILITIES OF THE COMPANY (INCLUDING LIABILITIES
OF THE SUBSIDIARIES) AMONG THE ASSETS OF THE COMPANY (INCLUDING THE ASSETS OF
THE SUBSIDIARIES) AS A RESULT OF THE MERGER (THE "ALLOCATION"). NO LATER THAN
CLOSING, BUYER AND PFC SHALL AGREE ON A PRELIMINARY ALLOCATION. BUYER SHALL
PROPOSE (SUBJECT TO PFC'S REVIEW AND COMMENT) THE PRELIMINARY ALLOCATION TO PFC
NO LATER THAN 5 BUSINESS DAYS BEFORE THE CLOSING DATE, AND ONCE AGREED UPON, THE
PRELIMINARY ALLOCATION SHALL BE ATTACHED TO THIS AGREEMENT AS SCHEDULE
7.7(C)(3). THEREAFTER, BUYER SHALL PROPOSE A FINAL ALLOCATION IN A WRITING
DELIVERED TO PFC ("BUYER'S ALLOCATION NOTICE") WITHIN 10 DAYS AFTER THE FINAL
DETERMINATION OF THE FINAL SETTLEMENT STATEMENT PURSUANT TO SECTION 1.6. PFC
SHALL BE DEEMED TO HAVE ACCEPTED SUCH ALLOCATION UNLESS, WITHIN 30 DAYS AFTER
THE DATE OF BUYER'S ALLOCATION NOTICE, PFC NOTIFIES BUYER IN WRITING OF (I) EACH
PROPOSED ITEM WITH WHICH PFC DISAGREES, AND (II) FOR EACH SUCH ITEM, THE AMOUNT
THAT PFC PROPOSES BE USED IN THE ALLOCATION. IF PFC GIVES BUYER SUCH NOTICE OF
OBJECTION, AND IF BUYER AND PFC FAIL TO RESOLVE THE ISSUES OUTSTANDING WITH
RESPECT TO THE ALLOCATION WITHIN 30 DAYS OF BUYER'S RECEIPT OF PFC'S OBJECTION
NOTICE, BUYER AND PFC SHALL SUBMIT THE ISSUES REMAINING IN DISPUTE TO THE
REFERRAL FIRM FOR RESOLUTION. IF ISSUES REMAINING IN DISPUTE ARE SUBMITTED TO
THE REFERRAL FIRM FOR RESOLUTION, (I) BUYER AND PFC SHALL PROMPTLY FURNISH OR
CAUSE TO BE FURNISHED TO THE REFERRAL FIRM SUCH WORK PAPERS AND OTHER DOCUMENTS
AND INFORMATION RELATING TO THE DISPUTED ISSUES AS THE REFERRAL FIRM MAY REQUEST
AND ARE AVAILABLE TO THAT PARTY OR ITS AGENTS AND SHALL BE AFFORDED THE
OPPORTUNITY TO PRESENT TO THE REFERRAL FIRM ANY MATERIAL RELATING TO THE
DISPUTED ISSUES AND TO DISCUSS THE ISSUES WITH THE REFERRAL FIRM; (II) THE
DETERMINATION BY THE REFERRAL FIRM, AS SET FORTH IN A NOTICE TO BE DELIVERED TO
BOTH PFC AND BUYER WITHIN 60 DAYS OF THE SUBMISSION TO THE REFERRAL FIRM OF THE
ISSUES REMAINING IN DISPUTE, SHALL BE FINAL, BINDING AND CONCLUSIVE ON THE
PARTIES AND SHALL BE USED IN THE FINAL ALLOCATION; AND (III) BUYER AND PFC WILL
EACH BEAR 50% OF THE FEES AND COSTS OF