Common use of Closing Inventory Statement Clause in Contracts

Closing Inventory Statement. (i) Seller shall deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement"), which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after the Closing Date, but shall deliver no later than ten (10) business days after the Closing Date. The Closing Inventory Statement shall be prepared in accordance with the current accounting practices of the Motive Power Division Business. Representatives of Buyer shall be entitled to observe and review the preparation of the Closing Inventory Statement to whatever extent Buyer may elect. (ii) The Closing Inventory Statement shall be reviewed by Buyer, and Buyer may, during the fifteen (15) business day period following the receipt by Buyer of the Closing Inventory Statement, propose such adjustments (if any) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.12. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding upon the parties, (A) if Buyer does not propose any adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as to any adjustments submitted to it for resolution. The Closing Inventory Statement, in the form in which it becomes final and binding upon Buyer and Seller as aforesaid, is hereinafter referred to as the "Final Closing Inventory Statement". The Final Closing Inventory Statement shall be delivered by Seller to Buyer within five (5) business days after it becomes binding upon Buyer and Seller as aforesaid.

Closing Inventory Statement. (ia) Seller The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following the Closing Date, Sellers shall prepare and deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement")) setting forth the type and value, which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after as of the Closing Date, but of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall deliver no later than ten be derived from a physical taking of such Inventory as of the Closing Date and shall be prepared in a manner consistent with the standards (10the "Inventory Standards") business set forth on SCHEDULE 2.9(a). Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate to observe the taking and reconciliation of such Inventory (which may begin prior to the Closing Date) in connection with the preparation of the Closing Inventory Statement. Buyer shall provide Sellers and their accountants full access to the books and records, to any other information, including working papers of its accountants, and to any employees of Buyer, in each case as may be reasonably necessary for Sellers to prepare the Closing Inventory Statement, to respond to the Buyer's Objection (as defined herein) and to prepare materials for presentation to the CPA Firm (as defined herein) in connection with the matters contemplated by Section 2.9(c). (b) Buyer shall, within thirty (30) days after the delivery by Sellers of the Closing DateInventory Statement, complete its review thereof. After delivery of the Closing Inventory Statement, Sellers shall provide Buyer and its accountants full access to all books and records, to any other information, including working papers of its accountants, and to any employees of Seller, in each case used in the preparation of the Closing Inventory Statement or as may otherwise be reasonably necessary for Buyer to prepare the Buyer's Objection and to prepare materials for presentation to the CPA Firm in connection with the matters contemplated by Section 2.9(c). The Closing Inventory Statement shall be prepared in accordance with the current accounting practices of the Motive Power Division Business. Representatives of binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall be entitled to observe and review the preparation have notified Sellers in writing within thirty (30) days after delivery of the Closing Inventory Statement of any objection thereto (the "Buyer's Objection"). The Buyer's Objection shall set forth a description of the basis of the Buyer's Objection and the adjustments to whatever extent the value of Inventory reflected on the Closing Inventory Statement that Buyer may electbelieves should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (iic) The If Sellers and Buyer are unable to resolve all of their disputes with respect to the Closing Inventory Statement within thirty (30) days following Sellers' receipt of the Buyer's Objection to such Closing Inventory Statement pursuant to Section 2.9(b), they shall refer their remaining differences to Ernst & Young or, if such firm declines to act or at such time has a significant ongoing relationship with either Seller, Buyer or any of their respective Affiliates, an internationally recognized firm of independent public accountants as to which Sellers and Buyer mutually agree (the "CPA Firm") for decision, which decision shall be reviewed made consistent with the Inventory Standards within forty-five (45) days and shall be final and binding on the parties, PROVIDED that the CPA Firm's determination as to any item set forth in Buyer's Objection shall not be more beneficial to Sellers than the determination of that item by Sellers in the Closing Inventory Statement or more beneficial to Buyer than the determination of that item in Buyer's Objection. Any expenses relating to the engagement of the CPA Firm shall be shared equally by Sellers, on one hand, and Buyer, on the other hand. Sellers and Buyer may, during shall each bear the fifteen (15) business day period following fees of their respective auditors incurred in connection with the receipt by Buyer determination and review of the Closing Inventory Statement, propose such adjustments . (if anyd) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.12. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding on the parties upon the partiesearliest of (i) if no Buyer's Objection has been given, the expiration of the period within which Buyer must make its objection pursuant to Section 2.9(b) hereof, (Aii) if agreement in writing by Sellers and Buyer does not propose that the Closing Inventory Statement, together with any adjustments modifications thereto in accordance with the terms hereofagreed to by Sellers and Buyer, on the earlier of shall be final and binding and (iii) the date of on which the CPA Firm shall issue its written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance determination with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as respect to any adjustments submitted dispute relating to it for resolutionsuch Closing Inventory Statement. The Closing Inventory Statement, in as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the form in which it becomes parties or as determined pursuant to the decision of the CPA Firm, when final and binding upon Buyer and Seller as aforesaidon all parties, is hereinafter herein referred to as the "Final Closing Inventory Statement.". The (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be delivered paid by wire transfer of immediately available funds to a bank account or bank accounts designated in writing by Sellers or Buyer, as the case may be; PROVIDED, HOWEVER, that if the Adjustment Payment shall be payable by Sellers to Buyer, in lieu of payment, Sellers may elect to credit the Adjustment Payment against the initial payments required to be made by Buyer under the Co-Pack Agreement; and PROVIDED, FURTHER, that if the Adjustment Payment shall be payable by Buyer to Sellers, in lieu of payment, Buyer may elect to add such payment to the payments due to Seller under the Co-Pack Agreement as if an amount of Inventory equal to the Adjustment Payment were sold pursuant to the Co-Pack Agreement. The Adjustment Payment shall be the difference, if any, between (x) the value of Inventory, as reflected on the Final Closing Inventory Statement, minus (y) $51,500,000. The Adjustment Payment shall be payable by Buyer within five to Sellers, if positive, and by Sellers (5who shall be jointly and severally so obligated) business to Buyer, if negative. The Adjustment Payment shall bear interest from the Closing Date to the date of payment at the Closing Date Interest Rate, which interest shall be calculated on the basis of a 365-day year and the actual number of days after elapsed and such interest shall be paid on the same date and in the same manner as such Adjustment Payment, PROVIDED that such interest shall not be imposed on Sellers if they elect to credit the Adjustment Payment against the Co-Pack Agreement and shall not be imposed on Buyer if it becomes binding upon Buyer and Seller as aforesaidelects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (ia) Schedule 2.7(a) represents the parties' estimate of the Inventory other than the Fall 2001 Inventory (the "Estimated Inventory"). Schedule 2.7(a) also sets forth the value of the Estimated Inventory based upon the parties' assumptions regarding the portions of the Estimated Inventory which will be attributed prior to the Closing Date and the cost of such attribution, including value added processing (e.g., packing and labels, etc.). Schedule 2.7(b) sets forth the pricing methodology used by Seller in determining the cost of attributing Blank Product, including value added processing. (b) No later than 48 hours prior to the Closing Date, the parties shall agree upon a statement ("Closing Inventory Statement") setting forth the Closing Inventory and the Closing Inventory Value. If the parties are not able so to agree, then, on the Closing Date, Seller shall deliver to Buyer the Closing Inventory Statement, it being agreed that Seller shall use commercially reasonable efforts to cause the Closing Inventory set forth on the Closing Inventory Statement to be the portions of the Inventory which satisfy the definition of Closing Inventory set forth in Section 2.6(b). The parties agree that any of the Inventory which does not constitute Bailed Inventory and which is not Closing Inventory set forth on the Closing Inventory Statement shall be transferred by the Company to Seller (or one of its Affiliates) prior to Closing and shall constitute the Fall 2001 Inventory. (c) On the Closing Date, Seller shall deliver to Buyer a statement setting forth certificate, duly signed by Seller, verifying that the value of the Inventory Company owns as of the Closing (the "Closing Inventory Statement"), which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after the Closing Date, but shall deliver no later than ten (10) business days after the Closing Date. The Closing Inventory Statement shall be prepared in accordance with the current accounting practices of the Motive Power Division Business. Representatives of Buyer shall be entitled to observe and review the preparation Date all of the Closing Inventory Statement to whatever extent Buyer may electInventory. (ii) The Closing Inventory Statement shall be reviewed by Buyer, and Buyer may, during the fifteen (15) business day period following the receipt by Buyer of the Closing Inventory Statement, propose such adjustments (if any) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.12. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding upon the parties, (A) if Buyer does not propose any adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as to any adjustments submitted to it for resolution. The Closing Inventory Statement, in the form in which it becomes final and binding upon Buyer and Seller as aforesaid, is hereinafter referred to as the "Final Closing Inventory Statement". The Final Closing Inventory Statement shall be delivered by Seller to Buyer within five (5) business days after it becomes binding upon Buyer and Seller as aforesaid.

Closing Inventory Statement. (ia) Seller The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following the Closing Date, Sellers shall prepare and deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement")) setting forth the type and value, which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after as of the Closing Date, but of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall deliver no later than ten be derived from a physical taking of such Inventory as of the Closing Date and shall be prepared in a manner consistent with the standards (10the "Inventory Standards") business set forth on SCHEDULE 2.9(a). Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate to observe the taking and reconciliation of such Inventory (which may begin prior to the Closing Date) in connection with the preparation of the Closing Inventory Statement. Buyer shall provide Sellers and their accountants full access to the books and records, to any other information, including working papers of its accountants, and to any employees of Buyer, in each case as may be reasonably necessary for Sellers to prepare the Closing Inventory Statement, to respond to the Buyer's Objection (as defined herein) and to prepare materials for presentation to the CPA Firm (as defined herein) in connection with the matters contemplated by Section 2.9(c). (b) Buyer shall, within thirty (30) days after the delivery by Sellers of the Closing DateInventory Statement, complete its review thereof. After delivery of the Closing Inventory Statement, Sellers shall provide Buyer and its accountants full access to all books and records, to any other information, including working papers of its accountants, and to any employees of Seller, in each case used in the preparation of the Closing Inventory Statement or as may otherwise be reasonably necessary for Buyer to prepare the Buyer's Objection and to prepare materials for presentation to the CPA Firm in connection with the matters contemplated by Section 2.9(c). The Closing Inventory Statement shall be prepared in accordance with the current accounting practices of the Motive Power Division Business. Representatives of binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall be entitled to observe and review the preparation have notified Sellers in writing within thirty (30) days after delivery of the Closing Inventory Statement of any objection thereto (the "Buyer's Objection"). The Buyer's Objection shall set forth a description of the basis of the Buyer's Objection and the adjustments to whatever extent the value of Inventory reflected on the Closing Inventory Statement that Buyer may electbelieves should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (iic) The If Sellers and Buyer are unable to resolve all of their disputes with respect to the Closing Inventory Statement within thirty (30) days following Sellers' receipt of the Buyer's Objection to such Closing Inventory Statement pursuant to Section 2.9(b), they shall refer their remaining differences to Ernst & Young or, if such firm declines to act or at such time has a significant ongoing relationship with either Seller, Buyer or any of their respective Affiliates, an internationally recognized firm of independent public accountants as to which Sellers and Buyer mutually agree (the "CPA Firm") for decision, which decision shall be reviewed made consistent with the Inventory Standards within forty-five (45) days and shall be final and binding on the parties, PROVIDED that the CPA Firm's determination as to any item set forth in Buyer's Objection shall not be more beneficial to Sellers than the determination of that item by Sellers in the Closing Inventory Statement or more beneficial to Buyer than the determination of that item in Buyer's Objection. Any expenses relating to the engagement of the CPA Firm shall be shared -25- <Page> equally by Sellers, on one hand, and Buyer, on the other hand. Sellers and Buyer may, during shall each bear the fifteen (15) business day period following fees of their respective auditors incurred in connection with the receipt by Buyer determination and review of the Closing Inventory Statement, propose such adjustments . (if anyd) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.12. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding on the parties upon the partiesearliest of (i) if no Buyer's Objection has been given, the expiration of the period within which Buyer must make its objection pursuant to Section 2.9(b) hereof, (Aii) if agreement in writing by Sellers and Buyer does not propose that the Closing Inventory Statement, together with any adjustments modifications thereto in accordance with the terms hereofagreed to by Sellers and Buyer, on the earlier of shall be final and binding and (iii) the date of on which the CPA Firm shall issue its written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance determination with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as respect to any adjustments submitted dispute relating to it for resolutionsuch Closing Inventory Statement. The Closing Inventory Statement, in as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the form in which it becomes parties or as determined pursuant to the decision of the CPA Firm, when final and binding upon Buyer and Seller as aforesaidon all parties, is hereinafter herein referred to as the "Final Closing Inventory Statement.". The (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be delivered paid by wire transfer of immediately available funds to a bank account or bank accounts designated in writing by Sellers or Buyer, as the case may be; PROVIDED, HOWEVER, that if the Adjustment Payment shall be payable by Sellers to Buyer, in lieu of payment, Sellers may elect to credit the Adjustment Payment against the initial payments required to be made by Buyer under the Co-Pack Agreement; and PROVIDED, FURTHER, that if the Adjustment Payment shall be payable by Buyer to Sellers, in lieu of payment, Buyer may elect to add such payment to the payments due to Seller under the Co-Pack Agreement as if an amount of Inventory equal to the Adjustment Payment were sold pursuant to the Co-Pack Agreement. The Adjustment Payment shall be the difference, if any, between (x) the value of Inventory, as reflected on the Final Closing Inventory Statement, minus (y) $51,500,000. The Adjustment Payment shall be payable by Buyer within five to Sellers, if positive, and by Sellers (5who shall be jointly and severally so obligated) business to Buyer, if negative. The Adjustment Payment shall bear interest from the Closing Date to the date of payment at the Closing Date Interest Rate, which interest shall be calculated on the basis of a 365-day year and the actual number of days after elapsed and such interest shall be paid on the same date and in the same manner as such Adjustment Payment, PROVIDED that such interest shall not be imposed on Sellers if they elect to credit the Adjustment Payment against the Co-Pack Agreement and shall not be imposed on Buyer if it becomes binding upon Buyer and Seller as aforesaidelects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (ia) Seller The target inventory of Sellers for purposes of this Agreement is $51,500,000. On the Closing Date or within 10 days thereafter, Sellers shall prepare and deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement")) setting forth the type, which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after value and location, as of the Closing Date, but shall deliver no later than ten (10) business days after of the Inventory and Pet Milk Inventory transferred to Buyer on the Closing Date. The Closing Inventory Statement Date pursuant to Sections 2.1, 2.3(a) and 7.12, which statement shall be derived from Sellers' inventory records maintained in the ordinary course of business consistent with past practices, shall be prepared in accordance a manner consistent with the current accounting practices of standards (the Motive Power Division Business. Representatives of Buyer "Inventory Standards") set forth on SCHEDULE 2.9(a) and shall be entitled to observe and review the preparation of the Closing Inventory Statement to whatever extent Buyer may elect. (ii) The Closing Inventory Statement shall be reviewed by Buyer, and Buyer may, during the fifteen (15) business day period following the receipt by Buyer of the Closing Inventory Statement, propose such adjustments (if any) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value identify which of the Inventory and Pet Milk Inventory is Raw Material Inventory (as defined herein). Buyer shall provide Sellers and their accountants full access to the books and records, to any other information, including working papers of its accountants, and to any employees of Buyer, in each case as may be reasonably necessary for Sellers to respond to the Buyer's Objection (as defined herein) and to prepare materials for presentation to the CPA Firm (as defined herein) in connection with the matters contemplated by Section 2.9(c). "Raw Material Inventory" shall mean, collectively, (x) all Inventory that is not finished goods inventory and (y) all Pet Milk Inventory that is not finished goods inventory. Notwithstanding anything to the contrary in this Agreement, Raw Material Inventory shall be conveyed at cost to, and title shall pass to Buyer after, the Closing in the manner provided in this Section 5.12. In the event that as such cost is billed to Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted pursuant to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding upon the parties, (A) if Buyer does not propose any adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as to any adjustments submitted to it for resolution. The Closing Inventory Statement, in the form in which it becomes final and binding upon Buyer and Seller as aforesaid, is hereinafter referred to as the "Final Closing Inventory Statement". The Final Closing Inventory Statement shall be delivered by Seller to Buyer within five (5) business days after it becomes binding upon Buyer and Seller as aforesaidTransition Services Agreement.

Closing Inventory Statement. (i) Seller shall deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement"), which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after the Closing Date, but shall deliver no later than ten (10) business days after the Closing Date. The Closing Inventory Statement shall be prepared in accordance with generally accepted accounting principles consistent with the current accounting practices of the Motive Power Division Business. Representatives of Buyer shall be entitled to observe and review the preparation of the Closing Inventory Statement to whatever extent Buyer may elect. (ii) The Closing Inventory Statement shall be reviewed by Buyer, and Buyer may, during the fifteen (15) business day period following the receipt by Buyer of the Closing Inventory Statement, propose such adjustments (if any) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.126.21. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG Peat Marwick (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding upon the parties, (A) if Buyer does not propose any adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as to any adjustments submitted to it for resolution. The Closing Inventory Statement, in the form in which it becomes final and binding upon Buyer and Seller as aforesaid, is hereinafter referred to as the "Final Closing Inventory Statement". The Final Closing Inventory Statement shall be delivered by Seller to Buyer within five (5) business days after it becomes binding upon Buyer and Seller as aforesaid.each

Closing Inventory Statement. (ia) Seller The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following the Closing Date, Sellers shall prepare and deliver to Buyer a statement setting forth the value of the Inventory as of the Closing (the "Closing Inventory Statement")) setting forth the type and value, which Closing Inventory Statement Seller shall use its best efforts to deliver within five (5) business days after as of the Closing Date, but of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall deliver no later than ten be derived from a physical taking of such Inventory as of the Closing Date and shall be prepared in a manner consistent with the standards (10the "Inventory Standards") business set forth on SCHEDULE 2.9(a). Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate to observe the taking and reconciliation of such Inventory (which may begin prior to the Closing Date) in connection with the preparation of the Closing Inventory Statement. Buyer shall provide Sellers and their accountants full access to the books and records, to any other information, including working papers of its accountants, and to any employees of Buyer, in each case as may be reasonably necessary for Sellers to prepare the Closing Inventory Statement, to respond to the Buyer's Objection (as defined herein) and to prepare materials for presentation to the CPA Firm (as defined herein) in connection with the matters contemplated by Section 2.9(c). (b) Buyer shall, within thirty (30) days after the delivery by Sellers of the Closing DateInventory Statement, complete its review thereof. After delivery of the Closing Inventory Statement, Sellers shall provide Buyer and its accountants full access to all books and records, to any other information, including working papers of its accountants, and to any employees of Seller, in each case used in the preparation of the Closing Inventory Statement or as may otherwise be reasonably necessary for Buyer to prepare the Buyer's Objection and to prepare materials for presentation to the CPA Firm in connection with the matters contemplated by Section 2.9(c). The Closing Inventory Statement shall be prepared in accordance with the current accounting practices of the Motive Power Division Business. Representatives of binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall be entitled to observe and review the preparation have notified Sellers in writing within thirty (30) days after delivery of the Closing Inventory Statement of any objection thereto (the "Buyer's Objection"). The Buyer's Objection shall set forth a description of the basis of the Buyer's Objection and the adjustments to whatever extent the value of Inventory reflected on the Closing Inventory Statement that Buyer may electbelieves should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (iic) The If Sellers and Buyer are unable to resolve all of their disputes with respect to the Closing Inventory Statement within thirty (30) days following Sellers' receipt of the Buyer's Objection to such Closing Inventory Statement pursuant to Section 2.9(b), they shall refer their remaining differences to Ernst & Young or, if such firm declines to act or at such time has a significant ongoing relationship with either Seller, Buyer or any of their respective Affiliates, an internationally recognized firm of independent public accountants as to which Sellers and Buyer mutually agree (the "CPA Firm") for decision, which decision shall be reviewed made consistent with the Inventory Standards within forty-five (45) days and shall be final and binding on the parties, PROVIDED that the CPA Firm's determination as to any item set forth in Buyer's Objection shall not be more beneficial to Sellers than the determination of that item by Sellers in the Closing Inventory Statement or more beneficial to Buyer than the determination of that item in Buyer's Objection. Any expenses relating to the engagement of the CPA Firm shall be shared -25- equally by Sellers, on one hand, and Buyer, on the other hand. Sellers and Buyer may, during shall each bear the fifteen (15) business day period following fees of their respective auditors incurred in connection with the receipt by Buyer determination and review of the Closing Inventory Statement, propose such adjustments . (if anyd) as shall in its judgment be required to cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 5.12. In the event that Buyer and Seller are unable to agree upon any such proposed adjustments within ten (10) business days after they have been proposed by Buyer as aforesaid then, in such event, the adjustments in dispute shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its consideration and resolution; the fees of the Arbitrator, the decision of which shall be final and binding upon Buyer and Seller, shall be paid one-half by each of said parties. The Closing Inventory Statement shall become final and binding on the parties upon the partiesearliest of (i) if no Buyer's Objection has been given, the expiration of the period within which Buyer must make its objection pursuant to Section 2.9(b) hereof, (Aii) if agreement in writing by Sellers and Buyer does not propose that the Closing Inventory Statement, together with any adjustments modifications thereto in accordance with the terms hereofagreed to by Sellers and Buyer, on the earlier of shall be final and binding and (iii) the date of on which the CPA Firm shall issue its written acceptance thereof by Buyer or fifteen (15) business days after the delivery thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance determination with the terms hereof, on the earlier of the date of written acceptance thereof (as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and Seller of the decision of the Arbitrator as respect to any adjustments submitted dispute relating to it for resolutionsuch Closing Inventory Statement. The Closing Inventory Statement, in as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the form in which it becomes parties or as determined pursuant to the decision of the CPA Firm, when final and binding upon Buyer and Seller as aforesaidon all parties, is hereinafter herein referred to as the "Final Closing Inventory Statement.". The (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be delivered paid by wire transfer of immediately available funds to a bank account or bank accounts designated in writing by Sellers or Buyer, as the case may be; PROVIDED, HOWEVER, that if the Adjustment Payment shall be payable by Sellers to Buyer, in lieu of payment, Sellers may elect to credit the Adjustment Payment against the initial payments required to be made by Buyer under the Co-Pack Agreement; and PROVIDED, FURTHER, that if the Adjustment Payment shall be payable by Buyer to Sellers, in lieu of payment, Buyer may elect to add such payment to the payments due to Seller under the Co-Pack Agreement as if an amount of Inventory equal to the Adjustment Payment were sold pursuant to the Co-Pack Agreement. The Adjustment Payment shall be the difference, if any, between (x) the value of Inventory, as reflected on the Final Closing Inventory Statement, minus (y) $51,500,000. The Adjustment Payment shall be payable by Buyer within five to Sellers, if positive, and by Sellers (5who shall be jointly and severally so obligated) business to Buyer, if negative. The Adjustment Payment shall bear interest from the Closing Date to the date of payment at the Closing Date Interest Rate, which interest shall be calculated on the basis of a 365-day year and the actual number of days after elapsed and such interest shall be paid on the same date and in the same manner as such Adjustment Payment, PROVIDED that such interest shall not be imposed on Sellers if they elect to credit the Adjustment Payment against the Co-Pack Agreement and shall not be imposed on Buyer if it becomes binding upon Buyer and Seller as aforesaidelects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.