Common use of Preparation of the Closing Date Balance Sheet Clause in Contracts

Preparation of the Closing Date Balance Sheet. 2.3.1. After the Closing Date, Purchaser, with the cooperation and assistance of Seller, shall prepare an unaudited consolidated balance sheet of the Company and the Subsidiary as of the Closing Date (but after taking into account the transactions to occur at or prior to the Closing pursuant to this Agreement) (the “Closing Date Balance Sheet”), together with supporting schedules with respect thereto. The Closing Date Balance Sheet shall be prepared in accordance with GAAP (except for required footnotes) applied in a manner consistent with the preparation of the Financial Statements and at a level of detail sufficient to identify the components necessary to calculate the Adjustment Amount. Purchaser shall deliver the Closing Date Balance Sheet and all supporting schedules with respect thereto to Seller as soon as practicable, but in any event no later than ninety (90) days after the Closing Date, together with Purchaser’s determination of the Adjustment Amount based upon the Closing Date Balance Sheet, certified by an officer of Purchaser, and the work papers relating thereto. Unless disputed as contemplated by Section 2.3.2, such determination by Purchaser shall be deemed final and binding on the parties hereto for all purposes of this Agreement. All costs and expenses of preparing the Closing Date Balance Sheet and determining the Adjustment Amount pursuant to this Section 2.3.1 shall be borne solely by Purchaser. 2.3.2. If Seller desires to dispute any matter set forth on the Closing Date Balance Sheet relating to the Adjustment Amount or Purchaser’s calculation of the Adjustment Amount, Seller must, within thirty (30) days of Seller’s receipt of all documents and computations required to be delivered to it pursuant to Section 2.3.1, deliver to Purchaser a written notice of its objection, setting forth in reasonable detail the basis of the objection. Thereafter, the parties hereto shall use their commercially reasonable efforts to resolve such dispute. If the parties hereto are unable to resolve such dispute within thirty (30) days after Purchaser receives Seller’s notice of objection, Purchaser and Seller shall, within five (5) days after the foregoing 30-day period, submit such dispute or controversy for resolution by a senior partner at a Big Four Accounting Firm mutually agreed to by Purchaser and Seller (the “Accounting Expert”). Purchaser and Seller, respectively, shall submit their determinations of the items in dispute to the Accounting Expert within five (5) days from the engagement of the Accounting Expert. The Accounting Expert shall review the books and records of the Company and the Subsidiary to resolve the dispute in question, applying the terms of this Agreement, including, where applicable, GAAP in a manner consistent with the preparation of the Financial Statements. The Accounting Expert shall deliver to Purchaser and Seller his or her resolution of such dispute, together with his or her work papers relating thereto, as soon as practicable, but in any event, no later than thirty (30) days from the engagement of the Accounting Expert as described above. The scope of the Accounting Expert’s work shall be limited to that necessary to resolve the particular issues in dispute that affect the determination of the Adjustment Amount. In no event shall the decision by the Accounting Expert exceed the scope of the relief sought by the parties. The Accounting Expert shall follow the provisions of this Section 2.3 and shall have no power to alter, amend or deviate from the provisions of this Section 2.3. All hearings and reports, correspondence and other documents related to the resolution of such dispute shall be conducted or written in the English language. The determination of the Accounting Expert shall be deemed final and binding on the parties for all purposes of this Agreement. Each party in any dispute resolution proceeding commenced under this Section 2.3.1 shall bear such party’s own costs and expenses (including expert witness and attorneys’ fees) of investigating, preparing and pursuing such dispute. The fees and expenses of the Accounting Expert in connection with the foregoing shall be shared equally by Purchaser and Seller.

Preparation of the Closing Date Balance Sheet. 2.3.1. After (i) Not later than one hundred twenty (120) days after the Closing Date, PurchaserPurchaser shall, with the cooperation at its sole cost, prepare and assistance of Seller, shall prepare deliver to Seller (A) an unaudited consolidated balance sheet of the Company and the Subsidiary Seller as of the close of business on the Closing Date (but after taking into account the transactions to occur at or prior to the Closing pursuant to this Agreement) (the “Closing Date Balance Sheet”), together with supporting schedules with respect thereto. The Closing Date Balance Sheet ) which shall be prepared in accordance with GAAP generally accepted accounting principles, consistently applied (except for required footnotes“GAAP”); and (B) applied a schedule (the “Schedule of Adjustments”) setting forth in a manner consistent with the preparation reasonable detail Purchaser’s good faith computation of the Financial Statements and at a level of detail sufficient to identify the components necessary to calculate the Accruals Adjustment Amount. Purchaser shall deliver based upon the Closing Date Balance Sheet and all supporting schedules with respect thereto to Seller as soon as practicable, but in any event no later than ninety (90) days after the Closing Date, together with Purchaser’s determination of the Adjustment Amount based upon the Closing Date Balance Sheet, certified by an officer of Purchaser, Accrual Amount and reflecting any change from the work papers relating thereto. Unless disputed as contemplated by Section 2.3.2, such determination by Purchaser shall be deemed final and binding on the parties hereto for all purposes of this Agreement. All costs and expenses of preparing the Estimated Closing Date Balance Sheet and determining the Adjustment Amount pursuant to this Section 2.3.1 shall be borne solely by PurchaserAccrual Amount. 2.3.2. If Seller desires to dispute any matter set forth on the Closing Date Balance Sheet relating to the Adjustment Amount or Purchaser’s calculation of the Adjustment Amount, Seller must, within thirty (30ii) days of Seller’s receipt of all documents and computations required to be delivered to it pursuant to Section 2.3.1, deliver to Purchaser a written notice of its objection, setting forth in reasonable detail the basis of the objection. Thereafter, the parties hereto shall use their commercially reasonable efforts to resolve such dispute. If the parties hereto are unable to resolve such dispute within thirty (30) days after Purchaser receives Seller’s notice of objection, Purchaser and Seller shall, within five (5) days after the foregoing 30-day period, submit such dispute or controversy for resolution by a senior partner at a Big Four Accounting Firm mutually agreed to by Purchaser and Seller (the “Accounting Expert”). Purchaser and Seller, respectively, shall submit their determinations of the items in dispute to the Accounting Expert within five (5) days from the engagement of the Accounting Expert. The Accounting Expert shall review the books and records of the Company and the Subsidiary to resolve the dispute in question, applying the terms of this Agreement, including, where applicable, GAAP in a manner consistent with the preparation of the Financial Statements. The Accounting Expert shall deliver to Purchaser and Seller his or her resolution of such dispute, together with his or her work papers relating thereto, as soon as practicable, but in any event, no Not later than thirty (30) days from after the engagement delivery of the Accounting Expert as described above. The scope Closing Date Balance Sheet and Schedule of Adjustments to Seller, Seller shall present any objections that Seller may have to any of the Accounting Expert’s work matters set forth therein, which objections shall be limited set forth in writing and in reasonable detail, and Seller shall present its own calculation of the Closing Date Accrual Amount. During such thirty (30) day review period, Purchaser agrees to that necessary provide, or cause to be provided, to Seller and the Members and their respective representatives reasonable access during normal business hours to the relevant records and working papers of Seller, and copies of such records and working papers, to aid in Seller’s review of the Closing Date Balance Sheet, Schedule of Adjustments and Accruals Adjustment. If Seller does not deliver any written objections to Purchaser within such 30-day period, Seller shall be deemed to have accepted the Closing Date Balance Sheet, Schedule of Adjustments and Accruals Adjustment and irrevocably waived any right to object thereto. Following the delivery to Purchaser of any objections to the Closing Date Balance Sheet, Schedule of Adjustments and/or Accruals Adjustment, Purchaser and Seller shall meet to discuss the objections raised by Seller with a good faith view toward resolving such objections. If Seller and Purchaser are able to resolve the particular issues in dispute that affect the determination of the objections raised by Seller, then they shall reduce such resolution to writing and such agreed upon Accruals Adjustment Amount. In no event valuation shall the decision by the Accounting Expert exceed the scope of the relief sought by the parties. The Accounting Expert shall follow the provisions of this Section 2.3 be final and shall have no power to alter, amend or deviate from the provisions of this Section 2.3. All hearings binding on Purchaser and reports, correspondence and other documents related Seller. (iii) If Seller delivers such written objections to the resolution Closing Date Balance Sheet, Schedule of Adjustments and/or Accruals Adjustment and all such objections are not resolved by Purchaser and Seller within thirty (30) calendar days after delivery to Purchaser of such objections, then such dispute shall be conducted submitted not later than seven (7) calendar days thereafter to a nationally or written in regionally recognized firm of independent certified public accountants to be mutually agreed upon by Purchaser and Seller other than any firm which performs, or within the English languagepast three years has performed, audits or financial statement reviews or financial statement compilations for Seller or Purchaser (the “Independent Accountant”). The determination Independent Accountant shall be instructed to deliver a decision solely with respect to the amount of the Accounting Expert Accruals Adjustment and the other matters referred to it for determination within thirty (30) calendar days after the submission of such matters to the Independent Accountant, and to only render a decision with respect to the matters submitted for determination. The Independent Accountant shall be deemed instructed that its decision shall be in writing and shall include (A) a statement describing in reasonable detail the decision of the Independent Accountant with respect to each item in dispute submitted to the Independent Accountant; (B) a computation of the Accruals Adjustment using the amounts determined by the Independent Accountant and reflecting changes, if any, to the Schedule of Adjustments and the Closing Date Balance Sheet, it being understood that the amount of the Closing Date Accrual Amount shall not be (x) less than the amount shown in Purchaser’s Accruals Adjustment and Schedule of Adjustments, nor (y) more than the amount thereof set forth in Seller’s written objections delivered to Purchaser pursuant to Section 1.7(b)(ii). The decision of the Independent Accountant shall be final and binding on the parties and conclusive upon Purchaser and Seller for all purposes of under this Agreement. Each party in any dispute resolution proceeding commenced under this Section 2.3.1 shall bear such party’s own costs and expenses (including expert witness and attorneys’ fees) of investigating, preparing and pursuing such disputeabsent manifest error. The fees and expenses of the Accounting Expert in connection with the foregoing Independent Accountant shall be shared equally by Purchaser on the one hand, and SellerSeller on the other hand.

Preparation of the Closing Date Balance Sheet. 2.3.1. After (i) Not later than seventy-five (75) days after the Closing Date, Purchaser, with the cooperation and assistance of Seller, Purchaser shall prepare and deliver to Seller (A) an unaudited consolidated audited balance sheet of the Company Business acquired from Seller comprised of the Purchased Assets and the Subsidiary Assumed Liabilities as of the close of business on the Closing Date (but after taking into account the transactions to occur at or prior to the Closing pursuant to this Agreement) (the “Closing Date Balance Sheet”), together with supporting schedules with respect thereto. The Closing Date Balance Sheet ) which shall be prepared in accordance with GAAP GAAP; and (except for required footnotesB) applied a schedule (the “Schedule of Adjustments”) setting forth in reasonable detail a manner consistent with the preparation computation of the Financial Statements and at a level of detail sufficient to identify the components necessary to calculate the Working Capital Adjustment Amount. Purchaser shall deliver based upon the Closing Date Balance Sheet and all supporting schedules with respect thereto to Seller as soon as practicable, but in any event no later than ninety (90) days after the Closing Date, together with Purchaser’s determination of the Adjustment Amount based upon the Closing Date Balance Sheet, certified by an officer of Purchaser, Working Capital and reflecting any change from the work papers relating thereto. Unless disputed as contemplated by Section 2.3.2, such determination by Purchaser shall be deemed final and binding on the parties hereto for all purposes of this Agreement. All costs and expenses of preparing the Estimated Closing Date Balance Sheet and determining the Adjustment Amount pursuant to this Section 2.3.1 shall be borne solely by PurchaserWorking Capital. 2.3.2. If Seller desires to dispute any matter set forth on the Closing Date Balance Sheet relating to the Adjustment Amount or Purchaser’s calculation of the Adjustment Amount, Seller must, within thirty (30ii) days of Seller’s receipt of all documents and computations required to be delivered to it pursuant to Section 2.3.1, deliver to Purchaser a written notice of its objection, setting forth in reasonable detail the basis of the objection. Thereafter, the parties hereto shall use their commercially reasonable efforts to resolve such dispute. If the parties hereto are unable to resolve such dispute within thirty (30) days after Purchaser receives Seller’s notice of objection, Purchaser and Seller shall, within five (5) days after the foregoing 30-day period, submit such dispute or controversy for resolution by a senior partner at a Big Four Accounting Firm mutually agreed to by Purchaser and Seller (the “Accounting Expert”). Purchaser and Seller, respectively, shall submit their determinations of the items in dispute to the Accounting Expert within five (5) days from the engagement of the Accounting Expert. The Accounting Expert shall review the books and records of the Company and the Subsidiary to resolve the dispute in question, applying the terms of this Agreement, including, where applicable, GAAP in a manner consistent with the preparation of the Financial Statements. The Accounting Expert shall deliver to Purchaser and Seller his or her resolution of such dispute, together with his or her work papers relating thereto, as soon as practicable, but in any event, no Not later than thirty (30) days from after the engagement delivery of the Accounting Expert as described above. The scope Closing Date Balance Sheet and Schedule of Adjustments to Seller, Seller shall present any objections that Seller may have to any of the Accounting Expert’s work matters set forth therein, which objections shall be limited to that necessary to resolve the particular issues set forth in dispute that affect the determination writing and in reasonable detail, and Seller shall present its own calculation of the Adjustment AmountClosing Date Working Capital. In no event shall Following the decision by the Accounting Expert exceed the scope delivery to Purchaser of the relief sought by the parties. The Accounting Expert shall follow the provisions of this Section 2.3 and shall have no power to alter, amend or deviate from the provisions of this Section 2.3. All hearings and reports, correspondence and other documents related any objections to the resolution Closing Date Balance Sheet, Schedule of Adjustments or Working Capital Adjustment, Purchaser and Seller shall meet to discuss the objections raised by Seller with a view toward resolving such objections. If Seller does not deliver any written objections to Purchaser within such 10-day period, Seller shall be deemed to have accepted the Closing Date Balance Sheet, Schedule of Adjustments and Working Capital Adjustment and irrevocably waived any right to object thereto. (iii) If Seller delivers such written objections to the Closing Date Balance Sheet, Schedule of Adjustments or Working Capital Adjustment and all such objections are not resolved by Purchaser and Seller within ten (10) calendar days after delivery to Purchaser of such objections, then such dispute shall be conducted submitted not later than five (5) calendar days thereafter to a nationally or written in regionally recognized firm of independent certified public accountants to be agreed upon by Purchaser and Seller other than any firm which performs, or within the English languagepast three years has performed, audits or financial statement reviews or financial statement compilations for Seller or Purchaser (the “Independent Accountant”). The determination Independent Accountant shall be instructed to deliver a decision solely with respect to the amount of the Accounting Expert Working Capital Adjustment and the other matters referred to it for determination within twenty (20) calendar days after the submission of such matters to the Independent Accountant, and to only render a decision with respect to the matters submitted for determination. The Independent Accountant shall be deemed instructed that its decision shall be in writing and shall include (A) a statement describing in reasonable detail the decision of the Independent Accountant with respect to each item in dispute submitted to the Independent Accountant; (B) a computation of the Working Capital Adjustment using the amounts determined by the Independent Accountant and reflecting changes, if any, to the Schedule of Adjustments and the Closing Date Balance Sheet, it being understood that the amount of the Closing Date Working Capital shall not be (x) less than the amount shown in Purchaser’s Working Capital Adjustment and Schedule of Adjustments, nor (y) more than the amount thereof set forth in Seller’s written objections delivered to Purchaser pursuant to Section 1.7(b)(ii). The decision of the Independent Accountant shall be final and binding on the parties and conclusive upon Purchaser and Seller for all purposes of under this Agreement, absent manifest error. Each party in any dispute resolution proceeding commenced under this Section 2.3.1 shall bear such partyIf the amount of the Working Capital Adjustment determined by the Independent Accountant is greater than the amount of the Working Capital Adjustment calculated by Purchaser and set forth on Purchaser’s own costs Schedule of Adjustments and expenses the difference between the amount of the Working Capital Adjustment calculated by Purchaser and the amount of the Working Capital Adjustment calculated by the Independent Accountant is greater than ten percent (including expert witness and attorneys’ fees10%) of investigatingthe amount of the Working Capital Adjustment calculated by Purchaser, preparing and pursuing such dispute. The then the fees and expenses of the Accounting Expert in connection with the foregoing Independent Accountant shall be shared paid by Purchaser. If the amount of the Working Capital Adjustment determined by the Independent Accountant is less than the amount of the Working Capital Adjustment calculated by Purchaser and set forth on the Schedule of Adjustments and the difference between the amount of the Working Capital Adjustment calculated by Purchaser and the amount of the Working Capital Adjustment calculated by the Independent Accountant is greater than ten percent (10%) of the amount of the Working Capital Adjustment calculated by Purchaser, then the fees and expenses of the Independent Accountant shall be paid by Seller. If the difference between the amount of the Working Capital Adjustment calculated by Purchaser and set forth on the Schedule of Adjustments and the amount of the Working Capital Adjustment calculated by the Independent Accountant is less than ten percent (10%) of the amount of the Working Capital Adjustment calculated by Purchaser and set forth on the Schedule of Adjustment, then the fees and expenses of the Independent Accountant shall be borne equally by Purchaser and Seller.