Common use of Closing Inventory Statement Clause in Contracts

Closing Inventory Statement. (a) 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 (the "Closing Inventory Statement") setting forth the type and value, as of the Closing Date, of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall 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 (the "Inventory Standards") 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 Inventory 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 binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall 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 the value of Inventory reflected on the Closing Inventory Statement that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) 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 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (a) 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 (the "Closing Inventory Statement") setting forth the type and value, as of the Closing Date, of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall 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 (the "Inventory Standards") 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 Inventory 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 binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall 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 the value of Inventory reflected on the Closing Inventory Statement that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) 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 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (a) The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following On the Closing DateDate or within 10 days thereafter, Sellers shall prepare and deliver to Buyer a statement (the "Closing Inventory Statement") setting forth the type type, value and valuelocation, as of the Closing Date, of the Inventory and Pet Milk Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 2.1, 2.3(a) and 2.3(a)7.12, which statement shall be derived from a physical taking Sellers' inventory records maintained in the ordinary course of such Inventory as of the Closing Date and business consistent with past practices, shall be prepared in a manner consistent with the standards (the "Inventory Standards") set forth on SCHEDULE 2.9(a). Buyer ) and its representatives shall have such opportunity as Buyer reasonably deems appropriate to observe identify which of the taking Inventory and reconciliation of such Pet Milk Inventory is Raw Material Inventory (which may begin prior to the Closing Date) in connection with the preparation of the Closing Inventory Statementas 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 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). . "Raw Material Inventory" shall mean, collectively, (bx) 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 shallafter, within thirty (30) days after the delivery by Sellers of the Closing Inventory 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 binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall 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 the value of Inventory reflected on the Closing Inventory Statement that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) 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 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 cost is billed 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Transition Services Agreement.

Closing Inventory Statement. (a) 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 (the "Closing Inventory Statement") setting forth the type and value, as of the Closing Date, of the Inventory transferred to Buyer on the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall 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 (the "Inventory Standards") 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 Inventory 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 binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall 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 the value of Inventory reflected on the Closing Inventory Statement that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) 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 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (ai) The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following the Closing Date, Sellers Seller shall prepare and 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) setting forth the type and value, as of business days after the Closing Date, of the Inventory transferred to Buyer on but shall deliver no later than ten (10) business days after the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall be derived from a physical taking of such Date. The Closing Inventory as of the Closing Date and Statement shall be prepared in a manner accordance with generally accepted accounting principles consistent with the standards (current accounting practices of the "Inventory Standards") set forth on SCHEDULE 2.9(a)Business. Representatives of Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate be entitled 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 Inventory 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 to whatever extent Buyer 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). elect. (ii) The Closing Inventory Statement shall be binding and conclusive uponreviewed by Buyer, and deemed accepted byBuyer may, during the fifteen (15) business day period following the receipt by Buyer unless Buyer shall have notified Sellers in writing within thirty (30) days after delivery of the Closing Inventory Statement of any objection thereto Statement, propose such adjustments (the "Buyer's Objection"). The Buyer's Objection if any) as shall set forth a description of the basis of the Buyer's Objection and the adjustments in its judgment be required to the value of Inventory reflected on cause the Closing Inventory Statement to properly reflect the value of the Inventory as of the Closing in the manner provided in this Section 6.21. In the event that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) If Sellers and Buyer Seller are unable to resolve all of their disputes with respect 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 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 accounting firm of independent public accountants as to which Sellers and Buyer mutually agree KPMG Peat Marwick (the "CPA FirmArbitrator") for decisionits consideration and resolution; the fees of the Arbitrator, the decision of which decision shall be 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 upon 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and BuyerSeller, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted paid one-half by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.each

Closing Inventory Statement. (a) The target inventory Schedule 2.7(a) represents the parties' estimate of Sellers for purposes the Inventory other than the Fall 2001 Inventory (the "Estimated Inventory"). Schedule 2.7(a) also sets forth the value of this Agreement is $51,500,000the 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.). Within thirty Schedule 2.7(b) sets forth the pricing methodology used by Seller in determining the cost of attributing Blank Product, including value added processing. (30b) days following No later than 48 hours prior to the Closing Date, Sellers the parties shall prepare and deliver to Buyer agree upon a statement (the "Closing Inventory Statement") setting forth the type Closing Inventory and valuethe Closing Inventory Value. If the parties are not able so to agree, as of 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 transferred to Buyer 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 Date pursuant to Sections 2.1 and 2.3(a), which statement Inventory Statement shall be derived from 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 physical taking of such Inventory certificate, duly signed by Seller, verifying that the Company owns as of the Closing Date and shall be prepared in a manner consistent with the standards (the "Inventory Standards") 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 all 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)Inventory. (b) Buyer shall, within thirty (30) days after the delivery by Sellers of the Closing Inventory 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 binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall 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 the value of Inventory reflected on the Closing Inventory Statement that Buyer believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) 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 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 shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) The Closing Inventory Statement shall become final and binding on the parties upon the earliest 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, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Inventory Statement. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreement.

Closing Inventory Statement. (ai) The target inventory of Sellers for purposes of this Agreement is $51,500,000. Within thirty (30) days following the Closing Date, Sellers Seller shall prepare and 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) setting forth the type and value, as of business days after the Closing Date, of the Inventory transferred to Buyer on but shall deliver no later than ten (10) business days after the Closing Date pursuant to Sections 2.1 and 2.3(a), which statement shall be derived from a physical taking of such Date. The Closing Inventory as of the Closing Date and Statement shall be prepared in a manner consistent accordance with the standards (current accounting practices of the "Inventory Standards") set forth on SCHEDULE 2.9(a)Motive Power Division Business. Representatives of Buyer and its representatives shall have such opportunity as Buyer reasonably deems appropriate be entitled 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 Inventory 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 to whatever extent Buyer 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). elect. (ii) The Closing Inventory Statement shall be binding and conclusive uponreviewed by Buyer, and deemed accepted byBuyer may, during the fifteen (15) business day period following the receipt by Buyer unless Buyer shall have notified Sellers in writing within thirty (30) days after delivery of the Closing Inventory Statement of any objection thereto Statement, propose such adjustments (the "Buyer's Objection"). The Buyer's Objection if any) as shall set forth a description of the basis of the Buyer's Objection and the adjustments in its judgment be required to the value of Inventory reflected on 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 believes should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer. (c) If Sellers and Buyer Seller are unable to resolve all of their disputes with respect 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 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 accounting firm of independent public accountants as to which Sellers and Buyer mutually agree KPMG (the "CPA FirmArbitrator") for decisionits consideration and resolution; the fees of the Arbitrator, the decision of which decision shall be made consistent with the Inventory Standards within forty-five (45) days and shall be final and binding on the partiesupon Buyer and Seller, 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 paid one-half by Sellers, on one hand, and Buyer, on the other handeach of said parties. Sellers and Buyer shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Inventory Statement. (d) 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 parties upon earlier of the earliest date of written acceptance thereof by Buyer or fifteen (i15) business days after the delivery thereof to Buyer, or (B) if no Buyer's Objection has been givenBuyer proposes adjustments thereto in accordance with the terms hereof, on the expiration earlier of the period within which date of written acceptance thereof (as so adjusted) by Buyer must make its objection pursuant to Section 2.9(b) hereof, (ii) agreement in writing by Sellers and Buyer that the Closing Inventory Statement, together with any modifications thereto agreed to by Sellers and Buyer, shall be final and binding and (iii) Seller or the date on which of the CPA Firm shall issue its written determination with respect receipt by Buyer and Seller of the decision of the Arbitrator as to any dispute relating adjustments submitted to such Closing Inventory Statementit for resolution. The Closing Inventory Statement, as submitted by Sellers if no timely Buyer's Objection has been given or as adjusted pursuant to any agreement between in the parties or as determined pursuant to the decision of the CPA Firm, when form in which it becomes final and binding on all partiesupon Buyer and Seller as aforesaid, is herein hereinafter referred to as the "Final Closing Inventory Statement." (e) Within ten (10) Business Days following issuance of the . The Final Closing Inventory Statement, the net adjustment payment payable pursuant to this Section 2.9(e) (the "Adjustment Payment") and interest thereon Statement shall be paid delivered by wire transfer of immediately available funds Seller to a bank account or bank accounts designated in writing by Sellers or Buyer, Buyer within five (5) business days after it becomes binding upon Buyer and Seller 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 to Sellers, if positive, and by Sellers (who shall be jointly and severally so obligated) 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 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 elects to add the Adjustment Payment to the Payments due under the Co-Pack Agreementaforesaid.