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 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. (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.

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. Following the Closing, Buyer shall prepare the Closing Balance Sheet and its calculations of the Net Working Capital, Cash, and Debt immediately prior to the Effective Time (the “Calculations”), and Buyer shall deliver the same to Members’ Representative no later than the ninetieth (90th) calendar day following the Closing Date. At least seven (7) business days prior to Buyer’s delivery of its Closing Balance Sheet and Calculations, Buyer shall provide drafts thereof to Members’ Representative and shall discuss with Members’ Representative any questions or concerns that Members’ Representative has with regard to such drafts during such seven (7) day period. Thereafter, the Closing Balance Sheet and Calculations delivered to Members’ Representative shall be final and binding on the Parties unless Members’ Representative objects within twenty (20) days after receipt thereof by: (i) Within forty-five notifying Buyer in writing of each objection; and (45ii) delivering to Buyer a statement describing the basis for each objection along with Members’ Representative’s Closing Balance Sheet and Calculations; provided that any such objection may only be based on a claim that the Closing Balance Sheet or Calculations were not prepared in accordance with the terms of this Agreement or on a claim of mathematical error. Any component of Buyer’s Closing Balance Sheet and Calculations that is not the subject of an objection by Members’ Representative shall be final and binding on the Parties and will be the basis for the adjustments described in Section 4.4(f). If Buyer agrees with the objection(s) of Members’ Representative and Members’ Representative’s Closing Balance Sheet and Calculations, then Members’ Representative’s Closing Balance Sheet and Calculations shall be final and binding on the Parties and the Purchase Price shall be adjusted as set forth in Section 4.4(f). If Buyer does not agree with the objection(s) of Members’ Representative or Members’ Representative’s Closing Balance Sheet and Calculations, then Buyer must, within fifteen (15) days after receipt of Members’ Representative’s objection(s) and Calculations, notify Members’ Representative of its disagreement. Throughout the period following the Closing Date, PainCare or Buyer shall permit Members’ Representative and its Affiliate will prepare counsel, accountants and deliver other advisors complete access to the Shareholder a balance sheet financial records 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 that are relevant to 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 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 DateCalculations.

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 Promptly following the Closing DateClosing, PainCare or its Affiliate the Buyer will cause the Company to prepare and deliver cause the Company's independent accountants to the Shareholder audit in accordance with Israeli GAAP at its expense a balance sheet of the Company as of the day immediately preceding Closing Date, with all values stated in U. S. Dollars, which shall include a computation of net working capital (current assets less current liabilities) as of the Statutory Merger Time prepared in accordance with GAAP Closing Date (the “"CLOSING BALANCE SHEET"). If the Closing Balance Sheet”Sheet indicates zero or a positive value for net working capital or if the Closing occurs on or after January 1, 2002, no adjustment to the consideration payable to Sellers will be made. Provided that the Closing occurs on or before December 31, 2001, if the Closing Balance Sheet indicates a negative value for net working capital, then the number of shares of Additional Buyer Stock to be issued to Sellers shall be reduced, by such number of shares of Buyer Stock as are equal in value to the deficiency, based upon a deemed value of $.70 per share (the "ADDITIONAL BUYER STOCK ADJUSTMENT"). Within twenty (20) business days after PainCare’s Buyer shall notify Sellers in writing of the amount of the Additional Buyer Stock Adjustment following delivery of the Closing Balance Sheet Sheet, and if Sellers do not within twenty days give Buyer written notice objecting to the Shareholdercalculation of the Additional Buyer Stock Adjustment, then the Shareholder shall, in a written notice parties will attempt 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 calculationsreach agreement within thirty days. If the Shareholder fails parties are unsuccessful in reaching an agreement, they will submit such issues to deliver notice of acceptance or objection an internationally recognized independent public accounting firm (the "ACCOUNTANTS") selected by mutual agreement. If issues in dispute are submitted to the Closing Balance Sheet within such twenty Accountants for resolution, (20i) business day period, the Shareholder shall be deemed to have accepted the Closing Balance Sheet. Except in the case of a dispute with respect each party will furnish to the Closing Balance SheetAccountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and available to that party, within twenty and will be afforded an opportunity to present to the Accountants any material relating to the determination; (20ii) business days after delivery the determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties; and (iii) Buyer on the one hand, and Sellers on the other hand, will each bear 50% 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 fees 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 Accountants 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 Datedetermination.