Common use of Balance Sheet Clause in Contracts

Balance Sheet. As used in this Agreement, “Balance Sheet” shall mean a schedule in the form of a balance sheet of Seller showing the net book values, as of a specified time, of the respective categories of assets and liabilities set forth in the Recent Balance Sheet, but reflecting only the Purchased Assets and Assumed Liabilities. The Parties agree that each Balance Sheet shall be prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a basis consistent with that used in the preparation of the Recent Balance Sheet. Notwithstanding the foregoing, the Estimated Closing Balance Sheet, the Preliminary Closing Balance Sheet and the Final Closing Balance Sheet shall be prepared in accordance with the following: (i) in valuing Inventory, there shall be such downward adjustments as are required to reflect the results of any physical inventory or cycle counts of the Inventory that have been taken by Seller or Buyer, and the reserve for excess and obsolete inventory shall not be less than $295,000; (ii) there shall be established a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000; (iii) accounts receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expenses, and all accounts receivable that are more than 180 days past due shall be valued as zero; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Preliminary Closing Balance Sheet, Buyer shall complete a physical inventory within 30 days of the Closing (with appropriate rollback adjustments), and Appointed Agent shall have the right to monitor and/or participate in such physical inventory.

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

Balance Sheet. 3.5.1 As used in this Agreementsoon as practicable after the Closing Date (but not later than 60 days after the Closing Date), “Balance Sheet” shall mean a schedule in Buyer will prepare, and cause its regularly engaged independent accountants or another firm of accountants not reasonably objected to by Seller ("CPA's) to audit and report upon the form of a balance sheet of the Seller showing at the net book values, close of business on the Adjustment Date. Such balance sheet shall be referred to herein as of a specified time, of the respective categories of assets and liabilities set forth in the Recent "Closing Balance Sheet." Except as specifically provided herein, but reflecting only the Purchased Assets and Assumed Liabilities. The Parties agree that each Closing Balance Sheet shall will be prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a basis consistent with that used the accounting principles, practices and assumptions utilized by the Company in the preparation of its audited balance sheet at December 31, 1997 and the Recent related notes thereto, attached hereto as Exhibit 5.10. The Closing Balance Sheet will include only those items transferred to or assumed by Buyer pursuant hereto. The inventory reflected on the Closing Balance Sheet will be based on a physical inventory taken on or about the Adjustment Date by Seller and observed by CPA's (at Buyer's expense). Seller will cooperate with Buyer and CPA's in facilitating the preparation and audit of the Closing Balance Sheet. Notwithstanding . 3.5.2 Immediately after the foregoingaudit of the Closing Balance Sheet has been completed, Buyer will compute the Estimated Long Term Debt, Current Assets and Current Liabilities as of the Adjustment Date. 3.5.3 Buyer's computation of the cash portion of the consideration, based on the Closing Balance Sheet, shall be delivered to the Preliminary Company in writing no later than 30 days after the Closing (the "Closing Consideration Statement"). During the 25-day period following the Seller's receipt of the Closing Consideration Statement, the Seller's accountants will be permitted to review the audit working papers of CPA's relating to the Closing Balance Sheet and will have access to Buyer's personnel as may be reasonably necessary in connection therewith and, in general, Buyer will cooperate with the Seller and the Seller's accountants in facilitating such review. The Closing Consideration Statement shall become final and binding upon the parties on the twenty-fifth day following the Seller's receipt thereof unless the Seller gives written notice of its disagreement as to the Closing Balance Sheet or the Closing Consideration Statement ("Notice of Disagreement") to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is received by Buyer in a timely manner then the Closing Consideration Statement shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing all differences they have with respect to any matter specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by the Arbitrators or Third Arbitrator, as the case may be (as such terms are defined in Section 3.5.4). The Closing Consideration Statement that becomes final and binding on the parties in accordance with the terms of this Section is referred to herein as the "Final Closing Statement." Notwithstanding Buyer's computation of the Long Term Debt, Current Assets and Current Liabilities, and the resulting Final Closing Statement, in no event shall the cash portion of the Purchase Price be less than $9,000,000 minus the Long Term Debt and plus or minus the Current Net Worth Adjustment. 3.5.4 During the 15-day period following the delivery of any Notice of Disagreement, the parties hereto shall attempt to resolve in writing any differences which they may have with respect to any matter specified in any Notice of Disagreement. If, at the end of such 15-day period, the parties have not reached agreement on such matters, either Buyer or the Seller shall submit the matters which remain in dispute to the arbitrators (the "Arbitrators"), for review and resolution. The Arbitrators shall be two persons or entities with offices in Chicago, Illinois, one of which shall be selected by each of Buyer and the Seller. If within 20 days of receipt by the Arbitrators of the matters which remain in dispute, the Arbitrators have failed to resolve such matters, the Arbitrators shall mutually agree upon a third person or entity with offices in Chicago, Illinois (the "Third Arbitrator") to review and resolve the disputed matters. The decision of the Third Arbitrator with respect to all disputed matters shall be final and binding on the parties. 3.5.5 The fees of each Arbitrator shall be borne by the party selecting such person or entity. The fees of the Third Arbitrator, if any, shall be borne fifty percent by the Seller and fifty percent by Buyer. The fees of CPA's incurred in connection with the audit of the Closing Balance Sheet and in any arbitration shall be borne by Buyer, and the fees of the Seller's accountants incurred in connection with their review of the Closing Balance Sheet and the Closing Consideration Statement and in any arbitration shall be borne by the Seller. 3.5.6 If the cash consideration reflected on the Final Closing Balance Sheet Statement exceeds the cash consideration paid at Closing, then Buyer will pay to the Seller, on the tenth day after the determination of the Final Closing Statement (the "Payment Date"), an amount equal to such excess. If the cash consideration shown on the Final Closing Statement is less than the cash consideration paid at Closing, then Seller will pay to Buyer, on the Payment Date, an amount equal to such excess. Any payment under this Section shall be prepared in accordance with the following: (i) in valuing Inventory, there shall be such downward adjustments as are required to reflect the results of any physical inventory made by certified or cycle counts of the Inventory that have been taken by Seller or Buyer, and the reserve for excess and obsolete inventory shall not be less than $295,000; (ii) there shall be established a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000; (iii) accounts receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expenses, and all accounts receivable that are more than 180 days past due shall be valued as zero; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Preliminary Closing Balance Sheet, Buyer shall complete a physical inventory within 30 days of the Closing (with appropriate rollback adjustments), and Appointed Agent shall have the right to monitor and/or participate in such physical inventoryofficial bank check.

Balance Sheet. As used Except as set forth in this Agreement, “Balance Sheet” shall mean a schedule in Section 5.12 of the form of a Disclosure Schedules: (a) The unaudited consolidated balance sheet of Seller showing the net book values, Providence Companies as of a specified timeApril 30, 2010 (the “Providence Balance Sheet”) is set forth on Schedule 5.12(a) of the respective categories of assets and liabilities set forth in the Recent Balance Sheet, but reflecting only the Purchased Assets and Assumed LiabilitiesDisclosure Schedules. The Parties agree that each Providence Balance Sheet shall be fairly presents in all material respects the financial condition of the Providence Companies on a consolidated basis as of such date and has been prepared in accordance with generally accepted accounting principles GAAP (subject to normal year-end adjustments and the absence of notes in the United States (“GAAP”) case of interim financial statements, none of which would, alone or in the aggregate, be materially adverse to the Providence A-38 Project as currently conducted and as proposed to be conducted by the Providence Expansion), applied on a consistent basis consistent with that used in (except as may otherwise be indicated therein). (b) The Providence Balance Sheet has been derived from the preparation financial books and records and operating records of the Recent Balance Sheet. Notwithstanding Providence Companies (with respect to the foregoingProvidence Project, the Estimated Closing Balance SheetProvidence Operating Business and the Assets of the Providence Companies). The financial books and records and operating records in respect of the Providence Project, the Preliminary Closing Balance Sheet Providence Operating Business and the Final Closing Balance Sheet shall be prepared Assets are true and correct in all material respects and have been maintained in accordance with the following: Providence Companies’ historical policies and procedures. (ic) [Reserved] (d) Except as set forth on Section 5.12(d)(i) of the Disclosure Schedule, the accounts receivable shown in the Providence Balance Sheet have been paid or, with respect to the unpaid accounts receivable, are bona fide receivables arising in the ordinary course of business. Except as set forth on Section 5.12(d)(ii) of the Disclosure Schedule, no Person has any Lien on such receivables or any part thereof, and no agreement for deduction, free goods, discount or other deferred price or quantity adjustment has been made with respect to such receivables. The Providence Sellers and the Providence Companies have no Knowledge indicating that any unpaid accounts receivable will not be paid within a period of three (3) months from the date of the Providence Balance Sheet (or such longer periods as are provided for in any contracts applicable thereto) in valuing Inventory, there shall be such downward adjustments as are required amounts equal to reflect their nominal amounts less any specific provision for bad or doubtful debts included in the results of any physical inventory or cycle counts of the Inventory that have been taken by Seller or Buyer, and the reserve for excess and obsolete inventory shall not be less than $295,000; (ii) there shall be established a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000; (iii) accounts receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expenses, and all accounts receivable that are more than 180 days past due shall be valued as zero; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Preliminary Closing Providence Balance Sheet, Buyer shall complete a physical inventory within 30 days of the Closing (with appropriate rollback adjustments), and Appointed Agent shall have the right to monitor and/or participate in such physical inventory.

Balance Sheet. (a) As used in this Agreementpromptly as practicable after the Closing Date, “Balance Sheet” Purchaser shall mean prepare and deliver to Seller a schedule in the form of a proposed combined balance sheet of Seller showing the net book values, Subsidiaries as of a specified timethe close of business on the Closing Date ("Proposed Balance Sheet"), in accordance with this Section 2. 1. The Proposed Balance Sheet shall reflect the effects of the respective categories of assets capital contributions required to be made pursuant to Section 1.4, shall not reflect refinancings or equity adjustments occurring on the Closing Date or Taxes to be paid by Seller under Section 10.2 and liabilities set forth in the Recent Balance Sheet, but reflecting only the Purchased Assets and Assumed Liabilities. The Parties agree that each Balance Sheet shall be prepared in accordance with United States generally accepted accounting principles in the United States (“"GAAP”") applied on by Purchaser in a basis manner consistent with that used the accounting principles and practices applied by Seller in the preparation of the Recent Financial Statements, with such adjustments thereto, if any, as are expressly set forth in this paragraph (a). Seller shall be permitted to have a representative present and participating in Purchaser's preparation of the Proposed Balance Sheet. Notwithstanding Notwithstanding, or without limitation, as the case may be, of the foregoing, the Estimated Closing Balance Sheetparties and Arbitrating Accountants, if applicable, shall use the Preliminary Closing following procedures or principles in the preparation and determination of the Proposed Balance Sheet and the Final Closing Balance Sheet shall be prepared in accordance with the following: Sheet: (i) in valuing Inventory, there reserves and accruals shall be such downward adjustments determined as are required to reflect if the results of any physical inventory or cycle counts date of the Inventory that have been taken by Seller or BuyerProposed Balance Sheet was the last day of the fiscal year, and the reserve shall include pro rata accruals for excess accrued salaries, wages, bonuses, vacation pay, utilities and obsolete inventory shall not be less than $295,000like items; (ii) there intercompany profit in inventory shall be established a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000disregarded; (iii) accounts receivable the settled Intercompany Accounts and cash of the Subsidiaries shall be excluded; (iv) to the extent any sums are required to be converted to United States Currency, the rate of exchange utilized by Seller in accordance with past practice (which is based upon exchange rates stated net in The Wall Street Journal) shall be employed; (v) inventories shall be determined from Seller's physical count observed by Purchaser and taking place on the previous month-end inventory and adjusted by production and sales as of an appropriate reserve for doubtful accounts and anticipated collection expensesthe day prior to the Closing Date, and all accounts receivable that are more than 180 days past due valued at the lower of cost or net realizable value, with cost being determined using the average cost methods heretofore used by K-T Clay an▇ ▇-▇ ▇▇ldspar; (vi) subjective judgments of Seller as of December 31, 2000 (e.g., as to reserves for bad debt or litigation) shall not be valued as zeroaltered absent a material event or change in circumstance concerning the particular matter; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Preliminary Closing Balance Sheet, Buyer shall complete a physical inventory within 30 days of the Closing (with appropriate rollback adjustments), and Appointed Agent shall have the right to monitor and/or participate in such physical inventory.

Balance Sheet. As used in this AgreementWithin forty-five (45) days following Closing, “Balance Sheet” Agent shall mean a schedule in the form of prepare and furnish to Foodbrands a balance sheet of Seller showing the net book values, as of a specified timethe Closing Date (the "Closing Date Balance Sheet") for the Company, which balance sheet shall reflect: (1) The inventory shall be valued based on the results of the respective categories of assets physical inventory taken pursuant to Section 5.15(a), and (2) Accounts receivable, and liabilities set forth in the Recent Balance Sheetapplicable reserves, but reflecting only the Purchased Assets and Assumed Liabilities. The Parties agree that each Balance Sheet shall be prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a basis consistent with that used in the preparation of the Recent Balance Sheet. Notwithstanding the foregoing, the Estimated Closing Balance Sheet, the Preliminary Closing Balance Sheet valued and the Final Closing Balance Sheet shall be prepared determined in accordance with the following: procedures set forth in Schedule 3.12; provided, the review shall be performed as of the Closing Date and accounts will be written off to the extent they are determined to be less then 100% collectible. (3) All employee bonuses, dividends and distributions whether paid or payable before or after the Closing and the settlement of accounts with affiliates shall be reflected in the balance sheet. (4) All normal and customary accruals shall be determined in accordance with GAAP, consistently applied. Seller shall deliver with the Closing Date Balance Sheet (i) in valuing Inventory, there shall be such downward adjustments as are required to reflect an accounting reflecting the results of any physical inventory or cycle counts calculation of the Inventory that have been taken by Seller or BuyerAdjusted Closing Purchase Price, and the reserve for excess and obsolete inventory shall not be less than $295,000; (ii) there a detailed statement of Net Working Capital (the "Statement of Net Working Capital") prepared from the Closing Date Balance Sheet. The Statement of Net Working Capital shall be established audited and confirmed by the Company's current certified public accountant as to its accuracy and compliance with this Agreement, at Seller's expense. Foodbrands shall then have a reasonable and sufficient reserve for all anticipated costs and expenses in connection with product and service warranties, which in no event shall be less than $600,000; (iii) accounts receivable shall be stated net period of an appropriate reserve for doubtful accounts and anticipated collection expenses, and all accounts receivable that are more than 180 time not exceeding thirty days past due shall be valued as zero; and (iv) accounts receivable shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing the Preliminary Closing Balance Sheet, Buyer shall complete a physical inventory within 30 days after its receipt of the Closing (with appropriate rollback adjustments)Date Balance Sheet in which to examine such accounting, during which time Foodbrands and Appointed Agent shall fully cooperate each with the other to resolve disputes, if any. In the event that Foodbrands and Agent are unable to resolve any dispute involved in the determination of the Adjusted Closing Purchase Price, the payment required to be made with respect to the Adjusted Closing Purchase Price as herein described shall be delayed until such dispute shall have the right to monitor and/or participate been settled by arbitration in such physical inventoryaccordance with Section 15.16.

Balance Sheet. As used in this Agreement, “Balance Sheet” shall mean a schedule in the form of a balance sheet Exhibit 3.3 (a) listing the values of Seller showing the net book valuesall Purchased Assets, as of a specified time, of the respective categories of assets and liabilities set forth in the Recent Balance Sheet, but reflecting only the Purchased Assets and all Assumed Liabilities, and the Net Asset Value. The Parties agree that each Balance Sheet shall Values will be prepared determined in accordance with generally accepted accounting principles in the United States (“GAAP”), including the necessary allowances and reserves required under GAAP, except as specifically set forth otherwise in this Section with regard to the Excluded Deferred Revenue (as defined, below) applied on a basis consistent with that used in the preparation of the Recent Balance Sheetand deferred rent. Notwithstanding the foregoing, the Estimated Closing Balance Sheet, the Preliminary Closing Balance Sheet and the Final Closing Balance Sheet shall be prepared in accordance with the following: (i) in valuing Inventory, there all Accrued Liabilities shall be such downward adjustments as are required to reflect sufficient for the results of any physical inventory or cycle counts payment in full of the Inventory that have been taken by Seller or BuyerAccrued Liabilities to which they relate, and the reserve for excess and obsolete inventory all accrued expenses shall not reflect all accruals of a character that would be less than $295,000reflected in a manner consistent with a year-end balance sheet; (ii) there shall to the extent required under GAAP, a deferred revenue liability will be established consistent with the method used in the Proforma Unaudited Financial Statements; provided, however, the deferred revenue liability will not include deferred revenue otherwise required by GAAP for setup fees to the extent that work for such setup fees has been performed as of the Closing Date notwithstanding that GAAP requires a reasonable deferred revenue liability to be booked for such setup fees and sufficient reserve notwithstanding that there may be service obligations for all anticipated costs and expenses hosting or support required in connection with product and service warranties, which the future ("Future Services") so long as such Future Services are separately billed or are included in no event shall be less than $600,000an existing hosting or support contract when the setup fees are performed (“Excluded Deferred Revenue”); (iii) there shall be no value assigned to intangible assets of Company used in the Business; (iv) prepaid expenses shall be valued at not more than the net realizable value that Buyer can obtain from such assets; (v) there shall be no value assigned to accounts receivable of the Business in connection with any transactions between: (A) Company and any of its Affiliates; and (B) Company and Members or Affiliates of Members; (vi) accounts receivable and notes receivable shall be stated net of an appropriate reserve for doubtful accounts and anticipated collection expensesexpenses consistent with the method used in the Proforma Unaudited Financial Statements; (vii) Company’s obligations set forth in Section 3.4, and all accounts receivable that are more than 180 days past due shall be valued as zero; and (iv) accounts receivable below, shall not include amounts historically recorded through a “TrynEx International” holding account. Without limitation, for purposes of preparing be accrued only to the Preliminary Closing Balance Sheet, Buyer shall complete a physical inventory within 30 days of extent that they have been paid by Company on or promptly after the Closing Date; (viii) Accrued Vacation will be based on the actual amount assumed by Buyer; (ix) with appropriate rollback respect to capitalized leases, both the asset and liability will be included in the amount required to be booked in accordance with GAAP; (x) no purchase accounting adjustments), and Appointed Agent shall have the right to monitor and/or participate in such physical inventory.