Common use of Closing Balance Sheet Clause in Contracts

Closing Balance Sheet. (i) Within forty-five (45) days after the Closing Date, PainCare or its Affiliate will prepare and deliver to the Shareholder a balance sheet of the Company as of the day immediately preceding the Statutory Merger Time prepared in accordance with GAAP (the “Closing Balance Sheet”). Within twenty (20) business days after PainCare’s delivery of the Closing Balance Sheet to the Shareholder, the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Closing Balance Sheet and the reasons therefore, including pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Balance Sheet within such twenty (20) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect to the Closing Balance Sheet, within twenty (20) business days after delivery of the Closing Balance Sheet (the “Adjustment Payment Date”), the Shareholder shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare and the Shareholder are not able to agree on the Closing Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, for computation or verification in accordance with the provisions of this Agreement, and the Net Equity Adjustment shall be paid by the Shareholder to PainCare within ten (10) business days after receipt of the accountant’s computation or verification. The computation or verification made by the accountant shall be final and binding upon the Parties, and there shall be no right of appeal from such decision. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.

Closing Balance Sheet. (i) Within forty-five (45) days after the Closing Date, PainCare or its Affiliate will prepare and deliver to the Shareholder Shareholders a balance sheet of the Company as of the day immediately preceding the Statutory Merger Time prepared in accordance with GAAP (the “Closing Balance Sheet”). Within twenty thirty (2030) business days after PainCare’s delivery of the Closing Balance Sheet to the ShareholderShareholders, the Shareholder Shareholders shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Closing Balance Sheet and the reasons therefore, including pertinent calculations. If the Shareholder fails Shareholders fail to deliver notice of acceptance or objection to the Closing Balance Sheet within such twenty thirty (2030) business day period, the Shareholder Shareholders shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect to the Closing Balance Sheet, within twenty thirty (2030) business days after delivery of the Closing Balance Sheet (the “Adjustment Payment Date”), the Shareholder Shareholders shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare and the Shareholder Shareholders are not able to agree on the Closing Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the ShareholderShareholders, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, for computation or verification in accordance with the provisions of this Agreement, and the Net Equity Adjustment shall be paid by the Shareholder Shareholders to PainCare within ten (10) business days after receipt of the accountant’s computation or verification. The computation or verification made by the accountant shall be final and binding upon the Parties, and there shall be no right of appeal from such decision. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.

Closing Balance Sheet. (i) Within forty-five (45) 120 days after the Closing Date, PainCare or its Affiliate Parent will prepare and deliver present to the Shareholder Shareholders' Agent a proposed balance sheet of the Company as of the day immediately preceding Closing Date (the Statutory Merger Time "Proposed Closing Balance Sheet"), together with the calculation of the Net Working Capital of the Company as of the Closing Date (the "Closing Calculation"). The Proposed Closing Balance Sheet shall be prepared in accordance with GAAP (and shall present fairly the “Closing Balance Sheet”). Within twenty (20) business days after PainCare’s delivery financial position of the Company as of the Closing Balance Sheet Date using practices and procedures consistent with those used in the preparation of the Company Financial Statements, except that no indebtedness for borrowed money shall be included in the calculation of Net Working Capital. The Shareholders' Agent shall have the right to review Parent's workpapers (the Shareholder, "Workpapers") utilized in preparing the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Proposed Closing Balance Sheet and the reasons therefore, including pertinent calculations. If Closing Calculation for purposes of verifying the Shareholder fails to deliver notice accuracy of acceptance or objection to the Proposed Closing Balance Sheet within such twenty (20) business day period, and the Shareholder Closing Calculation. The Proposed Closing Balance Sheet and the Closing Calculation shall be deemed binding upon the parties to have accepted this Agreement unless the Shareholders' Agent gives written notice of disagreement with the Proposed Closing Balance Sheet or the Closing Balance Sheet. Except in Calculation to Parent within 30 days after its receipt of the case of a dispute with respect to the Proposed Closing Balance Sheet, within twenty (20) business days after delivery specifying the nature and extent of such disagreement in sufficient specificity that Parent is able to investigate and respond to each element of such disagreement. If Parent and the Shareholders' Agent agree upon the Proposed Closing Balance Sheet (and/or the “Adjustment Payment Date”)Closing Calculation within 15 days after Parent's receipt of such notice from the Shareholders' Agent, such agreement shall be binding upon the parties to this Agreement. If Parent and the Shareholders' Agent are unable to resolve any such disagreement within such period, the Shareholder shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare and the Shareholder are not able to agree on the Closing Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations disagreement may be submitted referred for final determination to an independent certified public accountant that accounting firm of national reputation selected by the Parties shall mutually select, for computation or verification in accordance with mutual agreement of Parent and the provisions of this AgreementShareholders' Agent (the "Balance Sheet Selected Firm"), and the Net Equity Adjustment shall be paid by the Shareholder to PainCare within ten (10) business days after receipt resolution of the accountant’s computation or verification. The computation or verification made by disagreement and the accountant Closing Calculation resulting therefrom shall be final and binding upon the Partiesparties hereto for purposes of this Agreement. If Parent and the Shareholders' Agent cannot agree on the Balance Sheet Selected Firm, it shall be a national accounting firm chosen by the independent auditors for Parent. The Closing Balance Sheet as finally determined by the parties or by the Balance Sheet Selected Firm is the "Closing Balance Sheet." Each party shall bear its own costs related to the preparation and investigation of the Proposed Closing Balance Sheet, the Closing Balance Sheet, any items of disagreement, and there the Closing Calculation. The fees and disbursements of the Balance Sheet Selected Firm shall be no right of appeal from such decisionshared equally by Parent and the Shareholders. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.1.8

Closing Balance Sheet. (i) Within forty-five (45) days after the Closing Date, PainCare or its Affiliate will prepare and deliver to the Shareholder a balance sheet of the Company as of the day immediately preceding the Statutory Merger Time prepared in accordance with GAAP (the “Closing Balance Sheet”). Within twenty ten (2010) business days after PainCare’s delivery of the Closing Balance Sheet to the Shareholder, the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Closing Balance Sheet and the reasons therefore, including pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Balance Sheet within such twenty ten (2010) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect to the Closing Balance Sheet, within twenty ten (2010) business days after delivery of the Closing Balance Sheet (the “Adjustment Payment Date”), the Shareholder shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare and the Shareholder are not able to agree on the Closing Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, for computation or verification in accordance with the provisions of this Agreement, and the Net Equity Adjustment shall be paid by the Shareholder to PainCare within ten (10) business days after receipt of the accountant’s computation or verification. The computation or verification made by the accountant shall be final and binding upon the Parties, and there shall be no right of appeal from such decision. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.

Closing Balance Sheet. (ia) Within forty-five No later than ninety (4590) days after the Closing Date, PainCare or its Affiliate will prepare and the Purchaser shall deliver to the Shareholder a balance sheet of Shareholders Representative the Company as of the day immediately preceding the Statutory Merger Time prepared in accordance with GAAP (the “Closing Balance Sheet”). Within twenty (20) business days after PainCare’s delivery of the Closing Balance Sheet to the Shareholder, the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Closing Balance Sheet and the reasons therefore, including pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Balance Sheet within such twenty (20) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect to the Closing Balance Sheet, within twenty (20) business days after delivery of the final Closing Balance Sheet (the “Adjustment Payment DateFinal Closing Balance Sheet”)) and the calculation of the Final Net Working Capital based upon the Final Closing Balance Sheet, as well as the Final Cash and Cash Equivalents, the Shareholder shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare Final Closing Date Indebtedness and the Shareholder are not able to agree on the Final Transaction Expenses. The Final Closing Balance Sheet shall be prepared in accordance with GAAP consistently applied using the same accounting methods, practices, principles, policies and procedures (with consistent classifications, judgments and valuations and estimation methodologies) that were used in the preparation of the Company Audited Balance Sheet and the Company Audited Financial Statements; provided, however, that in the event of a conflict between consistency and compliance with GAAP, compliance with GAAP shall control. If the Shareholders Representative objects to the Purchaser’s calculation of the Final Net Working Capital, the Final Cash and Cash Equivalents, the Final Closing Date Indebtedness and/or the Final Transaction Expenses, the Shareholders Representative shall within thirty (30) days from after receipt thereof notify the Purchaser of the same in writing, which such notice shall include the basis of such objection and after the receipt by PainCare Shareholders Representative’s proposed modification of any objections raised by such calculations. During this thirty (30) day period, the ShareholderPurchaser and the Surviving Corporation shall provide the Shareholders Representative, then either Party upon reasonable prior notice, with reasonable access to books, records, work papers, auditors and personnel to the extent relevant to the determination of the Final Net Working Capital, the Final Cash and Cash Equivalents, the Final Closing Date Indebtedness and/or the Final Transaction Expenses. If the Shareholders Representative does not object to such calculations within such thirty (30) day period, the Purchaser’s calculations shall each be final, conclusive and binding on the parties. In addition, the Shareholders Representative will be deemed to have agreed with all items and amounts contained in Purchaser’s calculations of the right to require Final Net Working Capital, the Final Cash and Cash Equivalents, the Final Closing Date Indebtedness and the Final Transaction Expenses that such it has not disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, for computation or verification in accordance with the provisions of this Agreement, and the Net Equity Adjustment shall be paid by the Shareholder to PainCare within ten (10) business days after receipt of the accountant’s computation or verification. The computation or verification made by the accountant shall be final and binding upon the Parties, and there shall be no right of appeal from such decision. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Dateforegoing.

Closing Balance Sheet. As soon as practicable (i) Within forty-five and in any event within sixty (4560) days after following the Closing DateClosing), PainCare or its Affiliate will Buyer shall prepare and deliver to the Shareholder a Representative an audited balance sheet of the Company as at the Closing Date (the “Audited Closing Balance Sheet ”), together with a calculation of the day immediately preceding Company’s Adjusted Working Capital Deficit as at the Statutory Merger Time Closing Date and all work papers and back-up materials relating thereto. The Audited Closing Balance Sheet shall be prepared by Buyer’s outside auditors in accordance with GAAP (in a manner consistent with the “Closing Balance Sheet”). Within twenty (20) business days after PainCare’s delivery historical preparation of the Closing Balance Sheet to the Shareholder, the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Company Financial Statements. The Audited Closing Balance Sheet and the reasons therefore, including pertinent calculations. If calculation of the Shareholder fails to deliver Adjusted Working Capital Deficit shall be conclusiv e and binding on the parties hereto unless the Representative gives written notice of acceptance or objection to any objections thereto setting forth in reasonable detail the Closing Balance Sheet within such twenty (20) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except amounts in the case of a dispute with respect to the Closing Balance Sheet, within twenty (20) business days after delivery of the Closing Balance Sheet (the “Adjustment Payment Date”), the Shareholder shall pay the Net Equity Adjustment (as defined in Section 4.3(c)(ii) below), if any, to PainCare. In the event that PainCare and the Shareholder are not able basis for such dispute (a “Purchase Price Objection Notice”) to agree on the Closing Balance Sheet Buyer within thirty (30) days from after its receipt of the Audited Closing Balance Sheet and after calculation of Adjusted Working Capital Deficit. If the receipt by PainCare of any objections raised by Representative delivers a Purchase Price Objection Notice as provided above, Buyer and the Shareholder, then either Party Representative shall each have the right attempt in good faith to require that resolve such disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, for computation or verification in accordance with the provisions of this Agreementdispute, and the Net Equity Adjustment any resolution by them as to any disputed amounts shall be paid by final, binding and conclusive on Buyer and the Shareholder Company Shareholders. If Buyer and the Representative are unable to PainCare resolve, despite good faith negotiations, all disputes reflected in the Purchase Price Objection Notice within ten (10) business days thereafter (the “Purchase Price Resolution Period”), then Buyer and the Representative will, within ten (10) days after receipt the expiration of the accountant’s computation Purchase Price Resolution Period, submit any such unresolved dispute to a nationally recognized independent accounting firm which is that then engaged by, or verificationwho was not previously engaged by, Buyer or the Company (the Independent Accounting Firm”). Buyer and the Representative shall provide to the Independent Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Independent Accounting Firm to the extent available to Buyer or the Representative. Buyer and the Representative shall be afforded the opportunity to present to the Independent Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Independent Accounting Firm. The computation or verification made determination by the accountant Independent Accounting Firm, as set forth in a notice to be delivered to Purchaser and Seller within thirty (30) days after the submission of the unresolved disputes to the Independent Accounting Firm, shall be final final, binding and binding upon conclusive on the Parties, Purchaser and there shall be no right of appeal from such decisionthe Company. The accountant’s fees and expenses for such disputed determination of the Independent Accounting Firm shall be borne by at the Party whose determination has been modified by sole cost and expense of the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment DateSurviving Corporation.

Closing Balance Sheet. (i) Within forty-five (45) days after the Closing Date, PainCare or its Affiliate will prepare and deliver to the Shareholder a balance sheet of the Company as of the day immediately preceding the Statutory Merger Time prepared in accordance with GAAP (the “Closing Balance Sheet”). Within twenty ten (2010) business days after PainCare’s delivery of the Closing Balance Sheet to the Shareholder, the Shareholder shall, in a written notice to PainCare, either accept the Closing Balance Sheet or describe in reasonable detail any proposed adjustments to the Closing Balance Sheet and the reasons therefore, including pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Balance Sheet within such twenty ten (2010) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect to the Closing Balance Sheet, within twenty ten (2010) business days after delivery of the Closing Balance Sheet (the “Adjustment Payment Date”), the Shareholder shall pay to PainCare, or PainCare shall pay to the Shareholder, as the case may be, the Net Equity Adjustment (as defined in Section 4.3(c)(ii-iii) below), if any, to PainCare. In the event that PainCare and the Shareholder are not able to agree on the Closing Balance Sheet within thirty (30) days from and after the receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant that the Parties shall mutually select, or if the Parties are unable to agree on such accountant, Xxxxxxx & Company (or its successors or assigns) in Richmond, Virginia, for computation or verification in accordance with the provisions of this Agreement, and the Net Equity Adjustment shall be paid by the Shareholder to PainCare, or by PainCare to the Shareholder, as the case may be, within ten (10) business days after receipt of the accountant’s computation or verification. The computation or verification made by the accountant shall be final and binding upon the Parties, and there shall be no right of appeal from such decision. The accountant’s fees and expenses for such disputed determination shall be borne by the Party whose determination has been modified by the accountant or, if all Parties’ determinations have been modified by the accountant, by all Parties in proportion to the relative amount each Party’s determination has been modified. Any payments due under this Section 4.3 shall bear interest at eight percent (8%) per annum from the Adjustment Payment Date.