Common use of Balance Sheet Clause in Contracts

Balance Sheet. If Xxxxx and the Sellers shall be unable to resolve any dispute with respect to the Audited 1998 Balance Sheet (the "1998 Balance Sheet Dispute") within twenty (20) business days after delivery of the Seller's written objections, the matter or manners in dispute shall be submitted to such firm of independent certified public accountants as Buyer and the Sellers may agree. If the net book value of the Transferred Assets less the Assumed Liabilities as audited by such firm of independent certified public accountants, as of June 30, 1998, is greater than one hundred two percent (102%) of the net book value of the Transferred Assets less the Assumed Liabilities, as reflected on the Audited 1998 Balance Sheet, the fees of such firm of independent certified public accountants to resolve the 1998 Balance Sheet Dispute shall be borne by the Buyer, otherwise such fees shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities (i) as audited by such firm of independent certified public accountants in the event of an 1998 Balance Sheet Dispute or (ii) otherwise reflected on the Audited 1998 Balance Sheet. If the Audited Base Net Value is less than the Unaudited Base Net Value by more than $150,000, then, at Buyer's election, either (i) the Purchase Price shall be adjusted in the amount by which the difference exceeds $150,000 by reducing, in order of priority, the Cash Component, the Cash Payoff Component (and the corresponding Assumed Liabilities), the principal amount of the Subordinated Promissory Note and the Shares (valued for such purpose at the average closing price for the five trading days preceding the signing of this Agreement) or (ii) this Agreement shall be terminated.

Balance Sheet. If Xxxxx and As used in this Agreement, “Balance Sheet” shall mean a schedule in the Sellers shall be unable to resolve any dispute with respect to the Audited 1998 Balance Sheet (the "1998 Balance Sheet Dispute") within twenty (20) business days after delivery form of the Seller's written objections, the matter or manners in dispute shall be submitted to such firm a balance sheet of independent certified public accountants as Buyer and the Sellers may agree. If Seller showing the net book value of the Transferred Assets less the Assumed Liabilities as audited by such firm of independent certified public accountantsvalues, as of June 30a specified time, 1998, is greater than one hundred two percent (102%) of the net book value respective categories of assets and liabilities set forth in the Recent Balance Sheet, but reflecting only the Purchased Assets and Assumed Liabilities. The Parties agree that each Balance Sheet shall be prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a basis consistent with that used in the preparation of the Transferred Assets less Recent Balance Sheet. Notwithstanding the Assumed Liabilitiesforegoing, as reflected on the Audited 1998 Estimated Closing Balance Sheet, the fees of such firm of independent certified public accountants to resolve the 1998 Preliminary Closing Balance Sheet Dispute and the Final Closing Balance Sheet shall be borne by prepared in accordance with the Buyer, otherwise such fees shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities following: (i) in valuing Inventory, there shall be such downward adjustments as audited are required to reflect the results of any physical inventory or cycle counts of the Inventory that have been taken by such firm of independent certified public accountants in Seller or Buyer, and the event of an 1998 Balance Sheet Dispute or reserve for excess and obsolete inventory shall not be less than $295,000; (ii) otherwise reflected on there shall be established a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000; (iii) accounts receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expenses, and all accounts receivable that are more than 180 days past due shall be valued as zero; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Audited 1998 Preliminary Closing Balance Sheet. If , Buyer shall complete a physical inventory within 30 days of the Audited Base Net Value is less than the Unaudited Base Net Value by more than $150,000, then, at Buyer's election, either Closing (i) the Purchase Price shall be adjusted in the amount by which the difference exceeds $150,000 by reducing, in order of priority, the Cash Component, the Cash Payoff Component (and the corresponding Assumed Liabilitieswith appropriate rollback adjustments), and Appointed Agent shall have the principal amount of the Subordinated Promissory Note and the Shares (valued for right to monitor and/or participate in such purpose at the average closing price for the five trading days preceding the signing of this Agreement) or (ii) this Agreement shall be terminatedphysical inventory.

Balance Sheet. If Xxxxx As used in this Agreement, “Balance Sheet” shall mean a schedule in the form of Exhibit 3.3 (a) listing the values of all Purchased Assets, all Assumed Liabilities, and the Sellers Net Asset Value. Values will be determined in accordance with generally accepted accounting principles in the United States (“GAAP”), including the necessary allowances and reserves required under GAAP, except as specifically set forth otherwise in this Section with regard to the Excluded Deferred Revenue (as defined, below) and deferred rent. Notwithstanding the foregoing, the Preliminary Closing Balance Sheet and the Final Closing Balance Sheet shall be unable prepared in accordance with the following: (i) all Accrued Liabilities shall be sufficient for the payment in full of the Accrued Liabilities to resolve which they relate, and all accrued expenses shall reflect all accruals of a character that would be reflected in a manner consistent with a year-end balance sheet; (ii) to the extent required under GAAP, a deferred revenue liability will be established consistent with the method used in the Proforma Unaudited Financial Statements; provided, however, the deferred revenue liability will not include deferred revenue otherwise required by GAAP for setup fees to the extent that work for such setup fees has been performed as of the Closing Date notwithstanding that GAAP requires a deferred revenue liability to be booked for such setup fees and notwithstanding that there may be service obligations for hosting or support required in the future ("Future Services") so long as such Future Services are separately billed or are included in an existing hosting or support contract when the setup fees are performed (“Excluded Deferred Revenue”); (iii) there shall be no value assigned to intangible assets of Company used in the Business; (iv) prepaid expenses shall be valued at not more than the net realizable value that Buyer can obtain from such assets; (v) there shall be no value assigned to accounts receivable of the Business in connection with any dispute transactions between: (A) Company and any of its Affiliates; and (B) Company and Members or Affiliates of Members; (vi) accounts receivable and notes receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expenses consistent with the method used in the Proforma Unaudited Financial Statements; (vii) Company’s obligations set forth in Section 3.4, below, shall not be accrued only to the extent that they have been paid by Company on or promptly after the Closing Date; (viii) Accrued Vacation will be based on the actual amount assumed by Buyer; (ix) with respect to capitalized leases, both the Audited 1998 Balance Sheet (the "1998 Balance Sheet Dispute") within twenty (20) business days after delivery of the Seller's written objections, the matter or manners in dispute shall asset and liability will be submitted to such firm of independent certified public accountants as Buyer and the Sellers may agree. If the net book value of the Transferred Assets less the Assumed Liabilities as audited by such firm of independent certified public accountants, as of June 30, 1998, is greater than one hundred two percent (102%) of the net book value of the Transferred Assets less the Assumed Liabilities, as reflected on the Audited 1998 Balance Sheet, the fees of such firm of independent certified public accountants to resolve the 1998 Balance Sheet Dispute shall be borne by the Buyer, otherwise such fees shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities (i) as audited by such firm of independent certified public accountants in the event of an 1998 Balance Sheet Dispute or (ii) otherwise reflected on the Audited 1998 Balance Sheet. If the Audited Base Net Value is less than the Unaudited Base Net Value by more than $150,000, then, at Buyer's election, either (i) the Purchase Price shall be adjusted included in the amount by which the difference exceeds $150,000 by reducing, required to be booked in order of priority, the Cash Component, the Cash Payoff Component accordance with GAAP; (and the corresponding Assumed Liabilities), the principal amount of the Subordinated Promissory Note and the Shares (valued for such purpose at the average closing price for the five trading days preceding the signing of this Agreementx) or (ii) this Agreement shall be terminated.no purchase accounting adjustments

Balance Sheet. If Xxxxx 3.5.1 As soon as practicable after the Closing Date (but not later than 60 days after the Closing Date), Buyer will prepare, and cause its regularly engaged independent accountants or another firm of accountants not reasonably objected to by Seller ("CPA's) to audit and report upon the balance sheet of the Seller at the close of business on the Adjustment Date. Such balance sheet shall be referred to herein as the "Closing Balance Sheet." Except as specifically provided herein, the Closing Balance Sheet will be prepared in accordance with generally accepted accounting principles consistent with the accounting principles, practices and assumptions utilized by the Company in the preparation of its audited balance sheet at December 31, 1997 and the Sellers related notes thereto, attached hereto as Exhibit 5.10. The Closing Balance Sheet will include only those items transferred to or assumed by Buyer pursuant hereto. The inventory reflected on the Closing Balance Sheet will be based on a physical inventory taken on or about the Adjustment Date by Seller and observed by CPA's (at Buyer's expense). Seller will cooperate with Buyer and CPA's in facilitating the preparation and audit of the Closing Balance Sheet. 3.5.2 Immediately after the audit of the Closing Balance Sheet has been completed, Buyer will compute the Long Term Debt, Current Assets and Current Liabilities as of the Adjustment Date. 3.5.3 Buyer's computation of the cash portion of the consideration, based on the Closing Balance Sheet, shall be unable delivered to the Company in writing no later than 30 days after the Closing (the "Closing Consideration Statement"). During the 25-day period following the Seller's receipt of the Closing Consideration Statement, the Seller's accountants will be permitted to review the audit working papers of CPA's relating to the Closing Balance Sheet and will have access to Buyer's personnel as may be reasonably necessary in connection therewith and, in general, Buyer will cooperate with the Seller and the Seller's accountants in facilitating such review. The Closing Consideration Statement shall become final and binding upon the parties on the twenty-fifth day following the Seller's receipt thereof unless the Seller gives written notice of its disagreement as to the Closing Balance Sheet or the Closing Consideration Statement ("Notice of Disagreement") to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is received by Buyer in a timely manner then the Closing Consideration Statement shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve any dispute in writing all differences they have with respect to any matter specified in the Audited 1998 Balance Sheet Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by the Arbitrators or Third Arbitrator, as the case may be (as such terms are defined in Section 3.5.4). The Closing Consideration Statement that becomes final and binding on the parties in accordance with the terms of this Section is referred to herein as the "Final Closing Statement." Notwithstanding Buyer's computation of the Long Term Debt, Current Assets and Current Liabilities, and the resulting Final Closing Statement, in no event shall the cash portion of the Purchase Price be less than $9,000,000 minus the Long Term Debt and plus or minus the Current Net Worth Adjustment. 3.5.4 During the 15-day period following the delivery of any Notice of Disagreement, the parties hereto shall attempt to resolve in writing any differences which they may have with respect to any matter specified in any Notice of Disagreement. If, at the end of such 15-day period, the parties have not reached agreement on such matters, either Buyer or the Seller shall submit the matters which remain in dispute to the arbitrators (the "1998 Balance Sheet DisputeArbitrators") within twenty (20) business days after delivery of the Seller's written objections), the matter or manners in dispute for review and resolution. The Arbitrators shall be submitted to such firm two persons or entities with offices in Chicago, Illinois, one of independent certified public accountants as which shall be selected by each of Buyer and the Sellers may agreeSeller. If within 20 days of receipt by the net book value Arbitrators of the Transferred Assets less matters which remain in dispute, the Assumed Liabilities as audited by Arbitrators have failed to resolve such firm of independent certified public accountantsmatters, as of June 30the Arbitrators shall mutually agree upon a third person or entity with offices in Chicago, 1998, is greater than one hundred two percent Illinois (102%the "Third Arbitrator") to review and resolve the disputed matters. The decision of the net book value of the Transferred Assets less the Assumed Liabilities, as reflected Third Arbitrator with respect to all disputed matters shall be final and binding on the Audited 1998 Balance Sheet, the parties. 3.5.5 The fees of such firm of independent certified public accountants to resolve the 1998 Balance Sheet Dispute each Arbitrator shall be borne by the party selecting such person or entity. The fees of the Third Arbitrator, if any, shall be borne fifty percent by the Seller and fifty percent by Buyer. The fees of CPA's incurred in connection with the audit of the Closing Balance Sheet and in any arbitration shall be borne by Buyer, otherwise such and the fees of the Seller's accountants incurred in connection with their review of the Closing Balance Sheet and the Closing Consideration Statement and in any arbitration shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to Seller. 3.5.6 If the net book value of the Transferred Assets less the Assumed Liabilities (i) as audited by such firm of independent certified public accountants in the event of an 1998 Balance Sheet Dispute or (ii) otherwise cash consideration reflected on the Audited 1998 Balance SheetFinal Closing Statement exceeds the cash consideration paid at Closing, then Buyer will pay to the Seller, on the tenth day after the determination of the Final Closing Statement (the "Payment Date"), an amount equal to such excess. If the Audited Base Net Value cash consideration shown on the Final Closing Statement is less than the Unaudited Base Net Value by more than $150,000cash consideration paid at Closing, thenthen Seller will pay to Buyer, at Buyer's electionon the Payment Date, either (i) the Purchase Price an amount equal to such excess. Any payment under this Section shall be adjusted in the amount made by which the difference exceeds $150,000 by reducing, in order of priority, the Cash Component, the Cash Payoff Component (and the corresponding Assumed Liabilities), the principal amount of the Subordinated Promissory Note and the Shares (valued for such purpose at the average closing price for the five trading days preceding the signing of this Agreement) certified or (ii) this Agreement shall be terminatedofficial bank check.

Balance Sheet. If Xxxxx Within forty-five (45) days following Closing, Agent shall prepare and furnish to Foodbrands a balance sheet as of the Closing Date (the "Closing Date Balance Sheet") for the Company, which balance sheet shall reflect: (1) The inventory shall be valued based on the results of the physical inventory taken pursuant to Section 5.15(a), and (2) Accounts receivable, and the Sellers applicable reserves, shall be valued and determined in accordance with the procedures set forth in Schedule 3.12; provided, the review shall be performed as of the Closing Date and accounts will be written off to the extent they are determined to be less then 100% collectible. (3) All employee bonuses, dividends and distributions whether paid or payable before or after the Closing and the settlement of accounts with affiliates shall be reflected in the balance sheet. (4) All normal and customary accruals shall be determined in accordance with GAAP, consistently applied. Seller shall deliver with the Closing Date Balance Sheet (i) an accounting reflecting the calculation of the Adjusted Closing Purchase Price, and (ii) a detailed statement of Net Working Capital (the "Statement of Net Working Capital") prepared from the Closing Date Balance Sheet. The Statement of Net Working Capital shall be audited and confirmed by the Company's current certified public accountant as to its accuracy and compliance with this Agreement, at Seller's expense. Foodbrands shall then have a period of time not exceeding thirty days after its receipt of the Closing Date Balance Sheet in which to examine such accounting, during which time Foodbrands and Agent shall fully cooperate each with the other to resolve disputes, if any. In the event that Foodbrands and Agent are unable to resolve any dispute involved in the determination of the Adjusted Closing Purchase Price, the payment required to be made with respect to the Audited 1998 Balance Sheet (the "1998 Balance Sheet Dispute") within twenty (20) business days after delivery of the Seller's written objections, the matter or manners in Adjusted Closing Purchase Price as herein described shall be delayed until such dispute shall be submitted to such firm of independent certified public accountants as Buyer and the Sellers may agree. If the net book value of the Transferred Assets less the Assumed Liabilities as audited have been settled by such firm of independent certified public accountants, as of June 30, 1998, is greater than one hundred two percent (102%) of the net book value of the Transferred Assets less the Assumed Liabilities, as reflected on the Audited 1998 Balance Sheet, the fees of such firm of independent certified public accountants to resolve the 1998 Balance Sheet Dispute shall be borne by the Buyer, otherwise such fees shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities (i) as audited by such firm of independent certified public accountants arbitration in the event of an 1998 Balance Sheet Dispute or (ii) otherwise reflected on the Audited 1998 Balance Sheet. If the Audited Base Net Value is less than the Unaudited Base Net Value by more than $150,000, then, at Buyer's election, either (i) the Purchase Price shall be adjusted in the amount by which the difference exceeds $150,000 by reducing, in order of priority, the Cash Component, the Cash Payoff Component (and the corresponding Assumed Liabilities), the principal amount of the Subordinated Promissory Note and the Shares (valued for such purpose at the average closing price for the five trading days preceding the signing of this Agreement) or (ii) this Agreement shall be terminatedaccordance with Section 15.16.

Balance Sheet. If Xxxxx (a) As promptly as practicable after the Closing Date, Purchaser shall prepare and deliver to Seller a proposed combined balance sheet of the Sellers Subsidiaries as of the close of business on the Closing Date ("Proposed Balance Sheet"), in accordance with this Section 2. 1. The Proposed Balance Sheet shall reflect the effects of the capital contributions required to be made pursuant to Section 1.4, shall not reflect refinancings or equity adjustments occurring on the Closing Date or Taxes to be paid by Seller under Section 10.2 and shall be unable prepared in accordance with United States generally accepted accounting principles ("GAAP") applied by Purchaser in a manner consistent with the accounting principles and practices applied by Seller in the preparation of the Financial Statements, with such adjustments thereto, if any, as are expressly set forth in this paragraph (a). Seller shall be permitted to resolve any dispute with respect to have a representative present and participating in Purchaser's preparation of the Audited 1998 Proposed Balance Sheet. Notwithstanding, or without limitation, as the case may be, of the foregoing, the parties and Arbitrating Accountants, if applicable, shall use the following procedures or principles in the preparation and determination of the Proposed Balance Sheet (the "1998 Balance Sheet Dispute") within twenty (20) business days after delivery of the Seller's written objections, the matter or manners in dispute shall be submitted to such firm of independent certified public accountants as Buyer and the Sellers may agree. If the net book value of the Transferred Assets less the Assumed Liabilities as audited by such firm of independent certified public accountants, as of June 30, 1998, is greater than one hundred two percent (102%) of the net book value of the Transferred Assets less the Assumed Liabilities, as reflected on the Audited 1998 Final Balance Sheet, the fees of such firm of independent certified public accountants to resolve the 1998 Balance Sheet Dispute shall be borne by the Buyer, otherwise such fees shall be borne by the Sellers. The decision of such firm of independent certified public accountants shall be conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities : (i) reserves and accruals shall be determined as audited by such firm if the date of independent certified public accountants in the event of an 1998 Proposed Balance Sheet Dispute or was the last day of the fiscal year, and shall include pro rata accruals for accrued salaries, wages, bonuses, vacation pay, utilities and like items; (ii) otherwise reflected intercompany profit in inventory shall be disregarded; (iii) the settled Intercompany Accounts and cash of the Subsidiaries shall be excluded; (iv) to the extent any sums are required to be converted to United States Currency, the rate of exchange utilized by Seller in accordance with past practice (which is based upon exchange rates stated in The Wall Street Journal) shall be employed; (v) inventories shall be determined from Seller's physical count observed by Purchaser and taking place on the Audited 1998 Balance Sheet. If the Audited Base Net Value is less than the Unaudited Base Net Value previous month-end inventory and adjusted by more than $150,000, then, at Buyer's election, either (i) the Purchase Price shall be adjusted in the amount by which the difference exceeds $150,000 by reducing, in order of priority, the Cash Component, the Cash Payoff Component (production and the corresponding Assumed Liabilities), the principal amount sales as of the Subordinated Promissory Note day prior to the Closing Date, and the Shares (valued for such purpose at the lower of cost or net realizable value, with cost being determined using the average closing price cost methods heretofore used by K-T Clay anx X-X Xxldspar; (vi) subjective judgments of Seller as of December 31, 2000 (e.g., as to reserves for bad debt or litigation) shall not be altered absent a material event or change in circumstance concerning the five trading days preceding the signing of this Agreement) or particular matter; and (ii) this Agreement shall be terminated.