Common use of Closing Balance Sheet Clause in Contracts

Closing Balance Sheet. Seller at its expense shall cause Price Waterhouse LLP, its independent accountants ("SELLER'S ACCOUNTANTS") to prepare a balance sheet of the Business at the Closing Date (the "CLOSING BALANCE SHEET"), and to issue, at Buyer's request, as soon as practicable but in any event not later than thirty (30) days after the Closing Date, its opinion thereon to Buyer to the effect that such balance sheet presents fairly the financial position of Seller as of the Closing Date, in conformity with generally accepted accounting principles applied on a consistent basis. Such balance sheet shall specifically identify all assets reflected thereon which are not included in the Assets and all liabilities reflected thereon which are not assumed by Buyer under this Agreement, and shall identify the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3. The accountants' report shall also include a detailed schedule setting forth the calculation of the Adjustment to Base Purchase Price described in Section 2.1(b) and the Inventory Payment described in Section 2.2(b). In rendering the foregoing review and report, Seller's Accountants shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS"), and permit Buyer's Accountants at the earliest practicable date to review the report of Seller's Accountants, including all work papers, schedules and calculations related thereto, prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase of their review. Any dispute which may arise between Seller and Buyer as to such Closing Balance Sheet or the proper amount of the Adjustment to Base Purchase Price or Inventory Payment shall be resolved in the following manner:

Closing Balance Sheet. (a) On or about September 30, 2013, Buyer will cause to be prepared and deliver to Seller at its expense (i) the VIE1 Closing Balance Sheet and (ii) the VIE2 Closing Balance Sheet, and (iii) a certificate setting forth Buyer’s calculation of VIE1 Closing Shareholder’s Equity and VIE2 Closing Shareholder’s Equity. The “VIE1 Closing Balance Sheet” shall cause Price Waterhouse LLP, its independent accountants ("SELLER'S ACCOUNTANTS") to prepare a be the unaudited consolidated balance sheet of VIE1 as at the Business close of business on the Closing Date prepared in accordance with U.S. GAAP with the following adjustments: to the extent any transactions or adjustments included in the VIE1 Pro Forma Balance Sheet are not completed by the Closing Date or otherwise included in the VIE1 Closing Balance Sheet, pro forma adjustments shall be made on the same basis as in the VIE1 Pro Forma Balance Sheet as if such transactions were effective at the Closing Date. The “VIE2 Closing Balance Sheet” shall be the unaudited balance sheet of VIE2 as at the close of business on the Closing Date (prepared in accordance with U.S. GAAP with the "CLOSING BALANCE SHEET")following adjustments: to the extent any transactions or adjustments included in the VIE2 Pro Forma Balance Sheet are not completed by the Closing Date or otherwise included in the VIE2 Closing Balance Sheet, and to issue, pro forma adjustments shall be made on the same basis as in the VIE2 Pro Forma Balance Sheet as if such transactions were effective at Buyer's request, as soon as practicable but in any event not later than thirty (30) days after the Closing Date. “VIE1 Closing Shareholder’s Equity” means the shareholder’s equity as shown on the VIE1 Closing Balance Sheet, its opinion thereon and “VIE2 Closing Shareholder’s Equity” means the shareholder’s equity as shown on the VIE2 Closing Balance Sheet. If in connection with the preparation of the VIE1 Closing Balance Sheet, the VIE2 Closing Balance Sheet or the calculation of VIE1 Closing Shareholder’s Equity or VIE2 Closing Pro Shareholder’s Equity, any errors or omissions are discovered with respect to Buyer any item that affects the value of assets or liabilities as shown on the Pro Forma Balance Sheets, then the Pro Forma Balance Sheets, the VIE1 Closing Balance Sheet, the VIE2 Closing Balance Sheet and the Base Shareholder’s Equity shall be appropriately adjusted to correct for the effect of such errors or omissions so that the Closing Balance Sheet reflects only the passage of time and taking of actions with respect to any such balance sheet presents fairly the financial position of Seller as item. All of the Closing Date, adjustments to be made in conformity the preceding sentence shall be made in accordance with generally accepted accounting principles U.S. GAAP applied on a consistent basis. Such balance sheet shall specifically identify all assets reflected thereon which are not included in the Assets and all liabilities reflected thereon which are not assumed by Buyer under this Agreement, and shall identify the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3. The accountants' report shall also include a detailed schedule setting forth the calculation of the Adjustment to Base Purchase Price described in Section 2.1(b) and the Inventory Payment described in Section 2.2(b). In rendering the foregoing review and report, Seller's Accountants shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS"), and permit Buyer's Accountants at the earliest practicable date to review the report of Seller's Accountants, including all work papers, schedules and calculations related thereto, prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase of their review. Any dispute which may arise between Seller and Buyer as to such Closing Balance Sheet or the proper amount of the Adjustment to Base Purchase Price or Inventory Payment shall be resolved in the following manner:.

Closing Balance Sheet. Seller at its expense shall The Company will cause Price Waterhouse LLPto be prepared and delivered to the Stockholders, its independent accountants ("SELLER'S ACCOUNTANTS") to prepare a balance sheet of the Business at the Closing Date (the "CLOSING BALANCE SHEET"), and to issue, at Buyer's request, as soon as practicable but in any event not later than thirty (30) within 60 days after the Closing Date, its opinion thereon to Buyer to the effect that such balance sheet presents fairly Closing Balance Sheet. The Closing Balance Sheet shall be prepared by Purchaser's independent auditors from the financial position of Seller as books and records of the Closing Date, Company in conformity accordance with United States generally accepted accounting principles ("GAAP"), applied on a basis consistent basis. Such balance sheet shall specifically identify all assets reflected thereon which are not included with the policies employed in the Assets and all liabilities reflected thereon which are not assumed by Buyer under this Agreement, and shall identify preparation of the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3Audited Financial Statements. The accountants' report Closing Balance Sheet shall also include fully and accurately reflect all the expenses of (and any rights to reimbursement under Section 11.7 hereof related to) the transactions contemplated hereby incurred by (or owed to) the Company (including any distribution of cash to Stockholders of a detailed schedule setting forth value up to $2,000,000 pursuant to Section 6.4 and any unpaid fees and expenses of BA Partners, Lathxx & Xatkxxx xxx Ernsx & Xounx XXX to be paid by the calculation of the Adjustment to Base Purchase Price described in Section 2.1(bCompany) and the Inventory Payment expenses of closure of the Pasadena Facility, including severance costs, in each case unless previously paid and reflected in Net Worth, but shall not include any purchase accounting adjustments. Notwithstanding the foregoing, the Closing Balance Sheet shall reflect as environmental reserve for the matters described in Section 2.2(b). In rendering Schedule 2.3 only so much of the foregoing review and report, Seller's Accountants environmental reserve described on Schedule 2.3 as at the time shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS")not have been expended, and permit Buyer's Accountants at (without duplication) shall reflect any dividend or distribution by the earliest practicable date Company to the Stockholders permitted by Section 6.4 which occurs on the Closing Date. Representatives of Purchaser and the Stockholders may observe and comment upon the preparation of the Closing Balance Sheet. During the 45-day period following the Stockholders' receipt of the Closing Balance Sheet, the Stockholders and their independent auditors shall be permitted to review the report working papers of SellerPurchaser's Accountantsindependent auditors relating to the Closing Balance Sheet and to have access to the Company's pertinent financial and other records. The Closing Balance Sheet shall become final and binding upon the parties on the forty-fifth day following the Stockholders' receipt thereof, including all work papers, schedules and calculations related thereto, unless the Stockholders give written notice to Purchaser prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase such date of their review. Any dispute which may arise between Seller and Buyer as to such disagreement with the Closing Balance Sheet or that they have not been provided necessary access to requisite working papers or records ("NOTICE OF DISAGREEMENT"). Any Notice of Disagreement shall specify in reasonable detail the proper amount nature of any disagreement or lack of access, and include only disagreements based on mathematical errors, the Closing Balance Sheet not being calculated in accordance with this Section 2.3, or the determination of amounts involving discretion or judgment (including the amounts of reserves). If a Notice of Disagreement is received by Purchaser in a timely manner, then the Closing Balance Sheet (as it may be revised pursuant to the procedures described below) shall become final and binding upon the Stockholders and Purchaser on the earlier of (a) the date the Stockholders and Purchaser resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (b) the date any disputed matters are finally resolved in writing by the Accounting Firm (as defined below). During the 45-day period following the delivery of a Notice of Disagreement, the Stockholders and Purchaser shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. At the end of such 45-day period, the Stockholders and Purchaser shall submit to an independent accounting firm (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were properly included in the Notice of Disagreement. The Accounting Firm shall be any "Big 6" national accounting firm not employed (currently or within the preceding 24 months) by the Company, any of the Adjustment to Base Purchase Price Stockholders or Inventory Payment shall be resolved in the following manner:Purchaser, as

Closing Balance Sheet. Seller at its expense shall cause Price Waterhouse LLP(a) As promptly as practicable, its independent accountants ("SELLER'S ACCOUNTANTS") to prepare a balance sheet of the Business at but no later than 60 days after the Closing Date Date, Sellers will cause to be prepared and delivered to Buyer the Closing Balance Sheet and a certificate based on such Closing Balance Sheet setting forth Sellers' calculation of Closing Stockholder's Equity. The Closing Balance Sheet (the "CLOSING BALANCE SHEET")) shall (x) fairly present the pro forma combined financial position of the RJRI Group as at the close of business on the Closing Date in accordance with the Special Purpose Accounting Basis and assumptions, adjustments and accounting policies and practices otherwise consistent with those used in preparing the Pro Forma Balance Sheet (as defined in Section 3.08) and (y) include line items consistent with those in the Pro Forma Balance Sheet. "CLOSING STOCKHOLDER'S EQUITY" means the combined stockholder's equity of the RJRI Group as shown on the Closing Balance Sheet, including the effect of the cancellation of intercompany accounts pursuant to issueSection 7.04 but excluding (A) the effect (including the tax effect) of any act, at Buyer's request, as soon as practicable but in any event not later than thirty (30) days or transaction occurring on or after the Closing DateDate and not in the ordinary course of the operation of the Business, its opinion thereon (B) any accounting for deferred income tax assets or liabilities, (C) any write up or write down of assets (other than current assets) from their historic depreciated or amortized carrying cost to Buyer reflect any higher or lower market value and (D) any reserves established on or after the Closing Date for any contingent liabilities that are reflected in the Disclosure Letter or that were otherwise previously disclosed to Buyer. The parties acknowledge and agree that the Purchase Price takes into account the stockholders' equity reflected on the RJRI Pro Forma Balance Sheet and that the sole adjustment contemplated by Section 2.05 is to reflect the change in stockholders' equity of the RJRI Companies solely as a result of operations of the Business from the Balance Sheet Date to the effect that such balance sheet presents fairly the financial position Closing Date inclusive of Seller as of the Closing Date, in conformity with generally accepted accounting principles applied on a consistent basis. Such balance sheet shall specifically identify all assets reflected thereon which are not included in the Assets transactions and all liabilities reflected thereon which are not assumed by Buyer under this Agreement, changes in facts and shall identify circumstances actually occurring between the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3. The accountants' report shall also include a detailed schedule setting forth the calculation of the Adjustment to Base Purchase Price described in Section 2.1(b) and the Inventory Payment described in Section 2.2(b). In rendering the foregoing review and report, Seller's Accountants shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS"), and permit Buyer's Accountants at the earliest practicable date to review the report of Seller's Accountants, including all work papers, schedules and calculations related thereto, prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase of their review. Any dispute which may arise between Seller and Buyer as to such Closing Balance Sheet or the proper amount of the Adjustment to Base Purchase Price or Inventory Payment shall be resolved in the following manner:two dates.

Closing Balance Sheet. Seller at its expense As soon as reasonably practicable following the Closing but no later than 60 days following the Closing, Parent shall cause Price Waterhouse LLP, its independent accountants ("SELLER'S ACCOUNTANTS") to prepare be prepared and delivered to the Stockholders’ Agent a balance sheet of the Business at the Closing Date Company (the "CLOSING BALANCE SHEET"), and to issue, at Buyer's request, as soon as practicable but in any event not later than thirty (30“Closing Balance Sheet”) days after the Closing Date, its opinion thereon to Buyer to the effect that such balance sheet presents fairly the financial position of Seller as of the Closing Date, in conformity with generally accepted accounting principles applied including a calculation of each of: (a) the amount of cash of the Company as of the close of business on a consistent basis. Such the Closing Date, which amount shall include the exercise price of unexercised vested Company Options (the “Closing Cash”); (b) the accounts receivable of the Company on the Closing Date that are collected by the Company as of the close of business on the sixtieth (60) day following the Closing Date (the “Closing A/R”); provided, that the Closing A/R shall not include any accounts receivable of the Company that were created after the Closing Date; (c) the accounts payable balance sheet shall specifically identify all assets of the Company as of the Closing Date, including any accounts payable of the Company that should have been reflected thereon which are on the books of the Company at Closing, but were not included in so reflected (the Assets “Closing A/P”); and all liabilities (d) the amount of Company Transaction Expenses unpaid as of the close of business on the Closing Date, including any Company Transaction Expenses that should have been reflected thereon which are not assumed by Buyer under this Agreementon the books of the Company at Closing, and shall identify but were no so reflected (the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3“Closing Transaction Expenses”). The accountants' report shall also include a detailed schedule setting forth the calculation of the Adjustment to Base Purchase Price described in Section 2.1(b) and the Inventory Payment described in Section 2.2(b). In rendering the foregoing review and report, Seller's Accountants shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS"), and permit Buyer's Accountants at the earliest practicable date to review the report of Seller's Accountants, including all work papers, schedules and calculations related thereto, prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase of their review. Any dispute which may arise between Seller and Buyer as to such Closing Balance Sheet shall be prepared strictly in accordance with GAAP. Parent agrees to afford to the Stockholders’ Agent and its accountants, counsel, financial advisors or the proper amount other representatives access at reasonable times and on reasonable prior notice to all of the Adjustment Surviving Corporation’s and its Subsidiaries’ books and records, contracts, personnel and accountants and the work papers of each of the foregoing and, upon request, shall provide copies of any of the foregoing, as may be reasonably necessary to Base Purchase Price or Inventory Payment shall be resolved assist the Stockholders’ Agent in its review of the following manner:Closing Balance Sheet.

Closing Balance Sheet. (a) During the period ending 90 days after the Closing Date, Buyer and Seller at its expense shall will cooperate with the objective of agreeing to and preparing the Closing Balance Sheet together with an agreed to calculation of Closing Stockholder's Equity. If the parties are unable to agree thereon, Buyer will cause Price Waterhouse LLP, its independent accountants ("SELLER'S ACCOUNTANTS") the Company to prepare a balance sheet of the Business at the Closing Date Balance Sheet and to calculate Closing Stockholder's Equity and to deliver the same to Buyer and Seller. In all events, the Closing Balance Sheet (the "CLOSING BALANCE SHEET"), and to issue, at Buyer's request, as soon as practicable but in any event not later than thirty (30) days after shall reflect the Closing Date, its opinion thereon to Buyer to the effect that such balance sheet presents fairly the consolidated financial position of Seller the Company and the Subsidiaries as at the close of business on the Closing Date determined using the same accounting principles, policies, practices and methodologies used in the preparation of the Balance Sheet and (recognizing that they are not adjusted to give effect to the Restructuring) the unaudited pro forma balance sheets of the Company and the Subsidiaries as of December 31, 1997 and 1998 (the "COMPANY ACCOUNTING POLICIES") and shall include the same line items as in the Balance Sheet and (recognizing that they are not adjusted to give effect to the Restructuring) the unaudited pro forma balance sheets of the Company and the Subsidiaries as of December 31, 1997 and 1998. "CLOSING STOCKHOLDER'S EQUITY" means the consolidated stockholder's equity of the Company and the Subsidiaries as shown on the Closing DateBalance Sheet, in conformity with generally accepted the following adjustments: excluding (A) the effect (including the Section 338 Tax effect) of the Section 338(h)(10) Election except to the extent that Buyer is liable for Taxes under Section 8.03(e), (B) any provision for assets (including refunds) or liabilities attributable to Federal Taxes or Other Income Taxes, (C) any provision for assets or liabilities attributable to contingent Federal Taxes and Other Income Taxes, (D) any assets or liabilities attributable to deferred income taxes reflecting either differences between the treatment of items or amounts for accounting principles applied on a consistent basis. Such balance sheet shall specifically identify all assets reflected thereon which are not included in and income tax purposes or carryforwards, (E) any provision for Retained Liabilities, (F) cash, cash equivalents and Indebtedness for Borrowed Money, and (G) any other liabilities retained by Seller pursuant to the Assets and all liabilities reflected thereon which are not assumed by Buyer under terms of this Agreement, and shall identify the same items as are identified on SCHEDULE 2.1-1, SCHEDULE 2.1-2 AND SCHEDULE 2.1-3. The accountants' report shall also include a detailed schedule setting forth the calculation of the Adjustment to Base Purchase Price described in Section 2.1(b) and the Inventory Payment described in Section 2.2(b). In rendering the foregoing review and report, Seller's Accountants shall consult with Buyer's own accounting staff and, at Buyer's instruction, with Buyer's independent accountants ("BUYER'S ACCOUNTANTS"), and permit Buyer's Accountants at the earliest practicable date to review the report of Seller's Accountants, including all work papers, schedules and calculations related thereto, prior to the issuance thereof. Buyer's Accountants shall commence their review of said work papers, schedules and calculations as soon as practicable after Seller's Accountants have completed the field work phase of their review. Any dispute which may arise between Seller and Buyer as to such Closing Balance Sheet or the proper amount of the Adjustment to Base Purchase Price or Inventory Payment shall be resolved in the following manner:.