Common use of Allocation Statement Clause in Contracts

Allocation Statement. Within 90 days after the Closing, Parent shall deliver to the Buyer a statement (the “Allocation Statement”) allocating the consideration paid by the Buyer pursuant to this Agreement among the Company’s assets in accordance with Section 1060 of the Code and the Treasury Regulations thereunder (the “Section 1060 Allocation”). If, within 30 days after delivery of the Allocation Statement, the Buyer notifies Parent in writing that the Buyer objects to the allocation set forth in the Allocation Statement, Parent and the Buyer shall use commercially reasonable efforts to resolve such dispute within 20 days. In the event the Buyer and 42185384v.30 Parent are unable to resolve such dispute within 20 days, the Buyer and Parent shall file their Tax Returns in accordance with their own determinations as to the correct allocation. The parties agree to amend the Section 1060 Allocation as necessary to reflect any adjustments in consideration agreed upon, or payments made, after the Closing Date. Except as otherwise provided in this Section 8.09, the Buyer and Parent further agree to file, and to cause their respective Affiliates to file, their income tax returns and all other Tax Returns and necessary forms in such a manner as to reflect the allocation of the consideration as determined in accordance with this Section 8.09, provided, however, nothing herein shall prevent the Buyer or Parent, as the case may be, from settling any proposed deficiency or adjustment by any Governmental Authority based on the Allocation Statement and neither the Buyer nor Parent will be required to litigate any proposed adjustment by any Governmental Authority challenging such Allocation Statement. Any refund received by the Seller Entities for periods prior to the Closing Date or any portion of a Straddle Period prior to the Closing Date shall be paid to Parent, except to the extent such refund was taken into account as an adjustment to the Purchase Price hereunder.

Allocation Statement. The Buyer and the Sellers agree to treat the transaction occurring on the Closing Date as a deemed sale of the assets of KCS and KCS-AC pursuant to 25041432.12 the Section 338(h)(10) Elections. Neither party will report such transaction in a manner that is inconsistent with such treatment as an asset purchase, nor take any action inconsistent with such treatment, unless required to do so by a Governmental Authority. The Buyer and the Sellers agree that the Final Purchase Price, the Liabilities of KCS and KCS-AC, any other relevant items treated as consideration for income tax purposes, and all adjustments to the preceding made pursuant to the terms of this Agreement shall be allocated for all Tax purposes among the assets deemed to be sold by KCS and KCS-AC and the allocation shall be in accordance with the allocation methodology attached as Exhibit F attached to this Agreement (the “Allocation Methodology”). Within 90 sixty (60) days after the Closingdetermination of the Final Purchase Price, Parent shall the Sellers’ Representative will deliver or cause to be delivered to the Buyer a statement containing a draft allocation consistent with the Allocation Methodology (the “Allocation Statement”) allocating for the consideration paid by Buyer’s review, comment and approval. If the Sellers’ Representative and the Buyer pursuant are unable to this Agreement among agree upon the Company’s assets allocations in accordance with Section 1060 of the Code and the Treasury Regulations thereunder Allocation Statement within thirty (the “Section 1060 Allocation”). If, within 30 30) days after delivery of the Allocation Statement, Statement provided by the Buyer notifies Parent in writing that the Buyer objects Sellers’ Representative to the allocation set forth in the Allocation Statement, Parent and the Buyer shall use commercially reasonable efforts to resolve such dispute within 20 days. In the event the Buyer and 42185384v.30 Parent are unable to resolve such dispute within 20 daysBuyer, the Buyer and Parent the Sellers’ Representative shall file their Tax Returns in accordance with their own determinations as resolve the dispute by submitting such matter to the correct allocationIndependent Accountant for a determination consistent with the Allocation Methodology pursuant to the procedures set forth in Section 2.4(c). The parties agree to amend the Section 1060 Allocation as necessary to reflect any adjustments in consideration agreed upon, or payments made, after the Closing Date. Except as otherwise provided in this Section 8.09, the Buyer (and Parent further agree to file, and to cause their respective Affiliates to file, their income tax returns and all other Tax Returns and necessary forms in such a manner as to reflect Affiliates) will report the allocation of the total consideration as determined among the assets of KCS and KCS-AC and the covenants contained in Section 6.5 in a manner consistent with the final Allocation Statement and will act in accordance with the final Allocation Statement in the preparation and timely filing of all Tax Returns (including filing Form 8883 with their respective federal income Tax Returns for the taxable year that includes the Closing Date and any other forms or statements required by the Code, any regulation under the Code, the IRS or any applicable state or local Governmental Authority). Each party will promptly inform the others of any challenge by any Governmental Authority to any allocation made pursuant to this Section 8.09, 9.7; provided, however, nothing herein shall prevent that, subject to Section 8.5, the Buyer or Parent, as the case may be, from settling any proposed deficiency or adjustment by any Governmental Authority based on the Allocation Statement and neither the Buyer nor Parent will be required fully responsible for conducting and managing any such challenge and any and all related costs and expenses, and agrees to litigate any proposed adjustment by any Governmental Authority challenging such Allocation Statement. Any refund received by consult with and keep the Seller Entities for periods prior Sellers’ Representative informed with respect to the Closing Date status of, and any discussion, proposal or any portion of a Straddle Period prior to the Closing Date shall be paid to Parentsubmission with respect to, except to the extent such refund was taken into account as an adjustment to the Purchase Price hereunderchallenge.

Allocation Statement. Buyer and Seller understand and agree that the purchase and sale of the Equity will be treated for income Tax purposes as a purchase of the assets of the Company by the Buyer and will be treated for income Tax purposes as a sale of the assets of the Company by the Seller. Within 90 120 days after the Closing, Parent shall the Buyer will deliver or cause to be delivered to the Buyer Seller a statement containing the Buyer’s allocation of the Purchase Price among the Assets (the “Allocation Statement”) allocating the consideration paid by the Buyer pursuant to this Agreement among the Company’s assets ). The Allocation Statement will be prepared in accordance with Schedule 8.4(b) and Section 1060 of the Code and any comparable provisions of state, local or foreign Law, as appropriate, and the Treasury Regulations thereunder (Buyer will involve an independent, reputable accounting or valuation firm in the “Section 1060 Allocation”). If, within 30 days after delivery preparation of the Allocation Statement. The Buyer will permit the Seller to review and comment on such Allocation Statement described in the preceding sentence at least ten (10) days prior to filing such Allocation Statement Returns and will make such revisions to such Tax Returns as are reasonably requested by the Seller. The Buyer, the Buyer notifies Parent in writing that the Buyer objects to the allocation set forth in the Allocation Statement, Parent Company and the Buyer shall use commercially reasonable efforts to resolve such dispute within 20 days. In the event the Buyer and 42185384v.30 Parent are unable to resolve such dispute within 20 days, the Buyer and Parent shall file their Tax Returns in accordance with their own determinations as to the correct allocation. The parties agree to amend the Section 1060 Allocation as necessary to reflect any adjustments in consideration agreed upon, or payments made, after the Closing Date. Except as otherwise provided in this Section 8.09, the Buyer and Parent further agree to file, and to cause their respective Affiliates to file, their income tax returns and all other Tax Returns and necessary forms in such a manner as to reflect Seller Parties will report the allocation of the total consideration as determined among the Assets in a manner consistent with the final Allocation Statement and will act in accordance with this Section 8.09the final Allocation Statement in the preparation and timely filing of all Tax Returns (including filing Form 8594 with their respective federal income Tax Returns for the taxable year that includes the Closing Date and any other forms or statements required by the Code, providedRegulations, however, nothing herein shall prevent the IRS or any applicable state or local Taxing Authority). The Buyer and the Seller agree to promptly provide the other parties with any reasonable additional information with respect to the Buyer or Parentthe Seller, as the case may be, from settling and reasonable assistance required to complete IRS Form 8594 or to compute Taxes arising in connection with (or otherwise affected by) the transactions contemplated by this Agreement. Each party will promptly inform the others of any proposed deficiency or adjustment challenge by any Governmental Taxing Authority based on the Allocation Statement and neither to any allocation made pursuant to this Section 8.4; provided, however, that the Buyer nor Parent will be required fully responsible for conducting and managing any such challenge and any and all costs and expenses related thereto, and agrees to litigate any proposed adjustment by any Governmental Authority challenging such Allocation Statement. Any refund received by consult with and keep the Seller Entities for periods prior informed with respect to the Closing Date status of, and any discussion, proposal or any portion of a Straddle Period prior to the Closing Date shall be paid to Parentsubmission with respect to, except to the extent such refund was taken into account as an adjustment to the Purchase Price hereunderchallenge.

Allocation Statement. Within 90 thirty (30) calendar days after the Closingdetermination of the Final Adjustment Statement, Parent shall deliver to Seller will prepare an allocation statement allocating the Buyer a statement Purchase Price, as adjusted for federal income Tax purposes, including any other amounts treated as consideration for federal income tax purposes (the “Allocation StatementAggregate Consideration”) allocating the consideration paid by the Buyer pursuant to this Agreement among the Company’s assets of the Group Companies and the Transferred Assets for U.S. federal and applicable state income Tax purposes in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (the “Section 1060 Proposed Allocation”). IfFor purposes of this Section 5.3(f) and notwithstanding any provision of this Agreement to the contrary, within 30 the Parties agree that the Earnout Payments, the Post-Closing Services, and the Tier II Upgrade Payment are each properly allocable to, and will in fact be allocated to, the goodwill of the Group Companies to the greatest extent permissible under applicable income Tax Law. Within fifteen (15) calendar days after delivery the receipt of the Allocation StatementProposed Allocation, Buyer will propose any changes or will indicate its concurrence therewith. If Buyer does not agree with the Buyer notifies Parent in writing that the Buyer objects to the allocation set forth in the Allocation StatementProposed Allocation, Parent and the Buyer shall use commercially reasonable efforts to resolve such dispute within 20 days. In the event the then Buyer and 42185384v.30 Parent are unable Seller shall attempt in good faith to resolve such dispute within 20 days, the Buyer and Parent shall file their Tax Returns in accordance with their own determinations as to the correct allocation. The parties agree to amend the Section 1060 Allocation as necessary to reflect any adjustments in consideration agreed upon, or payments made, after the Closing Date. Except as otherwise provided in this Section 8.09, the Buyer and Parent further agree to file, and to cause their respective Affiliates to file, their income tax returns and all other Tax Returns and necessary forms in such a manner as to reflect reach agreement on the allocation of the consideration Aggregate Consideration in a manner consistent with applicable income Tax Law. If Buyer and Seller cannot reach agreement on such allocation within fifteen (15) calendar days after Buyer’s receipt of the Proposed Allocation, then the Accounting Firm shall determine the allocation under the procedures for resolving disputes as set forth in Section 5.3(e). The allocation of the Purchase Price among the assets of the Group Companies, as agreed to by Buyer and Seller or as finally determined in accordance with this Section 8.09, provided, however, nothing herein shall prevent by the Buyer or ParentAccounting Firm, as the case may be, from settling shall be binding on all Parties (the “Final Allocation”). Buyer and Seller shall, and shall cause each applicable Affiliate to: (i) file all Tax Returns for income Taxes consistent with the Final Allocation, including preparing Internal Revenue Service Form 8594 (Asset Acquisition Statement under Section 1060), if required, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code; (ii) promptly inform each other of any proposed deficiency or adjustment challenge by any Governmental Tax Authority based on the Allocation Statement and neither the Buyer nor Parent will be required to litigate any proposed adjustment by any Governmental Authority challenging such Allocation Statement. Any refund received by the Seller Entities for periods prior to the Closing Date or any portion of a Straddle Period prior Final Allocation; and (iii) consult with and keep one another informed with respect to the Closing Date shall be paid to Parentstatus of, except and any discussion, proposal or submission with respect to, any challenge to the extent such refund was taken into account as an adjustment to the Purchase Price hereunderFinal Allocation.