Common use of Closing Date Balance Sheet Clause in Contracts

Closing Date Balance Sheet. (a) As soon as reasonably practicable following the Closing Date, the Sellers shall provide to the Board of Directors of the Surviving Corporation an audited consolidated balance sheet of the Empire Companies as of the Closing Date (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared on the same basis (including using the same accounting principles and practices) as the most recent financial statements of the Empire Companies referred to in Section 5.8 hereof. It is understood that the Closing Date Balance Sheet will eliminate intercompany transactions, including without limitations, the loans from Empire-US to Empire-Pacific which are reflected as assets on the balance sheets of Empire-US referred to in Section 5.8 hereof. (b) If a majority of the Continuing Directors disagree with any aspect of the Closing Date Balance Sheet, they may object to the Closing Balance Sheet in writing, detailing their disagreement (the Dispute Notice). If no Dispute Notice is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing the Closing Date Balance Sheet (including the audit thereof); provided, however, that the Surviving Corporation shall pay the fees and expenses of any accounting firm retained pursuant to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs and expenses that either of the Empire Companies is responsible for pursuant to Section 11.1(a) hereof, then the full amount of such unpaid costs and expenses shall be accrued for on the Closing Date Balance Sheet.

Closing Date Balance Sheet. (a) As soon as reasonably practicable following Within ninety (90) days after the Closing Date, the Sellers Parent shall provide prepare and deliver to the Board of Directors of the Surviving Corporation Shareholders’ Representative an audited unaudited consolidated balance sheet of for the Empire Companies Company as of the Closing Date (the "“Initial Closing Date Balance Sheet"”), which shall be prepared by Parent in accordance with GAAP as applied in the Latest Balance Sheet, and a statement setting forth an initial calculation of the Closing Working Capital (the “Initial Closing Working Capital Statement”). The Promptly upon the Shareholders’ Representative request, Parent shall make available to the Shareholders’ Representative copies of the work papers and back-up materials used by Parent in preparing the Initial Closing Date Balance Sheet, the Initial Closing Working Capital Statement and such other documents as the Shareholders’ Representative may reasonably request in connection with its review of the Initial Closing Date Balance Sheet shall be audited and the Initial Closing Working Capital Statement. Any information supplied to the Shareholders’ Representative by KPMG Peat Marwick LLP and shall be prepared on Parent to enable the same basis (including using Shareholders’ Representative to review the same accounting principles and practices) as the most recent financial statements of the Empire Companies referred to in Section 5.8 hereof. It is understood that the Initial Closing Date Balance Sheet will eliminate intercompany transactionsand the Initial Closing Working Capital Statement shall be maintained by the Shareholders’ Representative in strict confidence and shall not be disclosed to any Person (other than the Shareholders and its and their respective accountants and other representatives who need to know such information) or used by the Shareholders’ Representative or any Shareholder for any purpose, including without limitations, except in each case in connection with the loans from Empire-US to Empire-Pacific which are reflected as assets on the balance sheets of Empire-US referred to in matters specifically covered by this Section 5.8 hereof3.1. (b) If a majority of The Shareholders’ Representative shall review the Continuing Directors disagree with any aspect of the Initial Closing Date Balance Sheet, they may object to Sheet and Initial Closing Working Capital Statement during the Closing Balance Sheet in writing, detailing their disagreement thirty (the Dispute Notice). If no Dispute Notice is given to the Sellers within 45 days of 30) day period commencing on the date that the Closing Balance Sheet is furnished to Shareholders’ Representative receives the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing the Initial Closing Date Balance Sheet (including and Initial Closing Working Capital Statement. If the audit thereof); providedShareholders’ Representative disagrees with the calculation of Closing Working Capital set forth therein, howeverthe Shareholders’ Representative shall, that prior to the Surviving Corporation shall pay the fees and expenses of any accounting firm retained pursuant to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs and expenses that either of the Empire Companies is responsible for pursuant to Section 11.1(a) hereof, then the full amount end of such unpaid costs period, deliver a written notice to Parent (a “Notice of Disagreement”) setting forth its objections in reasonable detail and expenses shall specifying the adjustments that, in its opinion, should be accrued for on made to the Initial Closing Date Balance Sheet.Sheet and the Initial Closing Working Capital Statement in order to accurately calculate Closing Working Capital in accordance with this Agreement (collectively, the “Proposed Adjustments”). To the extent that there are any Proposed Adjustments, Parent shall, no later than fifteen (15) days after receipt of the Proposed Adjustments, notify the Shareholders’ Representative which, if any, of the Proposed Adjustments it accepts and which, if any, of the

Closing Date Balance Sheet. (a) As soon promptly as reasonably practicable following possible after the Closing DateClosing, the Sellers Company shall provide to the Board of Directors prepare a financial statement of the Surviving Corporation an audited consolidated Company consisting of a balance sheet reflecting the Alba Contributed Assets (together with the net book value of such assets) and the Empire Companies Assumed Liabilities as of the Closing Date (the "Closing Date Balance Sheet"). Such financial statement shall also include the amount of reserves for customer chargebacks and returns as of the Closing Date, which amount shall have been updated to reflect the latest information available, as of the date of preparation, and a supplemental report setting forth the Working Capital Adjustment, if any, as set forth in Section 2.4. The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared based on the same basis (including using assumptions used in the preparation of the Balance Sheet and prepared in accordance with the same accounting principles and practices) as procedures used in the most recent financial statements preparation of the Empire Companies referred Balance Sheet, which procedures are more fully described in the notes thereto. As promptly as reasonably practicable and, in any event, not later than forty-five (45) days after the Closing Date, the Company shall deliver to in Section 5.8 hereof. It is understood that Alba, Encompass and GE Capital the Closing Date Balance Sheet will eliminate intercompany transactionsand shall make available any work papers or other information then or thereafter reasonably requested by Alba, including without limitationsEncompass or GE Capital. If Alba, Encompass or GE Capital does not object, or otherwise fails to respond, to the loans from Empire-US to Empire-Pacific which are reflected as assets on Closing Date Balance Sheet within fifteen (15) days after delivery of the balance sheets of Empire-US referred to in Section 5.8 hereofClosing Date Balance Sheet (the "Initial Balance Sheet Review Period"), such Closing Date Balance Sheet shall automatically become final and conclusive. (b) If a majority In the event that Alba, Encompass or GE Capital objects to the Closing Date Balance Sheet within the Initial Balance Sheet Review Period, Alba, Encompass and GE Capital shall promptly meet and endeavor in good faith to reach agreement as to the objections raised by Alba, Encompass or GE Capital, as the case may be, regarding the content of the Continuing Directors disagree with any aspect Closing Date Balance Sheet. If Alba, Encompass and GE Capital thereafter agree on the content of the Closing Date Balance Sheet, they may object to the such Closing Balance Sheet in writing, detailing their disagreement (the Dispute Notice). If no Dispute Notice is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Date Balance Sheet shall be deemed become final and binding for all purposes under conclusive. If Alba, Encompass and GE Capital are unable to reach agreement within fifteen (15) days following the Initial Balance Sheet Review Period, then the Independent Accountants shall promptly be retained to determine whether the disputed items in the Closing Date Balance Sheet were determined in accordance with this Agreement, which determination shall be made as promptly as possible, but in no event later than thirty (30) days following its selection. If Only disputed item(s) raised by Alba, Encompass or GE Capital, as the Sellers and case may be, shall be submitted to the majority Independent Accounts for review. In resolving any disputed item, the Independent Accountants may not assign a value to such item greater than the greatest value for such item claimed by either party or less than the lowest value for such item claimed by either party, in each case as presented to the Independent Accountants. Such determination of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which Independent Accountants shall be final and binding upon on Alba, Encompass and GE Capital, and all expenses of the parties hereto for all purposes of this Agreement. Unless consented to Independent Accountants shall be borne by the Sellers, such accounting firm shall not Company. Any Working Capital Adjustment payment required to be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing made after the Closing Date Balance Sheet (including the audit thereof); provided, however, that the Surviving Corporation shall pay the fees and expenses of any accounting firm retained pursuant to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs and expenses that either of the Empire Companies is responsible for pursuant to Section 11.1(a) hereof, then the full amount of such unpaid costs and expenses 2.4 shall be accrued for finally determined on the basis of the Closing Date Balance Sheet.

Closing Date Balance Sheet. (a) As soon as reasonably practicable following Within 60 days after the Closing Date, the Sellers shall provide to the Board of Directors of the Surviving Corporation Date an audited consolidated unaudited balance sheet of for the Empire Companies Company shall be prepared as of the Closing Date (the "Closing Date Balance Sheet")) by PentaStar and delivered by PentaStar to the Shareholders' Agent. The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared in accordance with GAAP, on a basis consistent with the same basis (including using the same accounting principles and practices) as the most recent financial statements practices of the Empire Companies referred to in Section 5.8 hereofPentaStar. It is understood that the The Closing Date Balance Sheet will eliminate intercompany transactionsshall set forth, including without limitationsin addition to other items required by PentaStar's application of GAAP, the loans from Empireamount, as of the Closing Date, of (A) cash held by the Company in excess of the Interim Cash Requirement, (B) the Interim Cash Requirement, (C) the aggregate amount of accounts receivable, notes receivable and Residual Payment Rights collected by the Company after August 31, 2001 (whether by collection of cash, offset or otherwise, and whether or not any cash or other amount received in respect thereof is on hand or has been used by the Company) as a result of the accelerated collection thereof beyond normal stated terms or outside the ordinary course of business consistent with past practice or as a set-US to Empire-Pacific which are reflected as assets on off against future payments against accounts receivable, notes receivable or Residual Payment Rights, (D) the balance sheets of Empire-US referred to Retained Liabilities described in Section 5.8 hereof. clause (b) If a majority of the Continuing Directors disagree with any aspect definition of Retained Liabilities and each item thereof, and (E) all Closing Date Liabilities and each item thereof. Within 20 days after receipt of the Closing Date Balance Sheet, they may object the Shareholders' Agent shall, in a written notice to the Closing Balance Sheet in writingPentaStar, detailing their disagreement (the Dispute Notice). If no Dispute Notice is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing either accept the Closing Date Balance Sheet (including the audit thereof); provided, however, that the Surviving Corporation shall pay the fees and expenses of or object to it by describing in reasonably specific detail any accounting firm retained pursuant proposed adjustments to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs Balance Sheet and expenses that either the estimated amounts of and reasons for such proposed adjustments. The failure by the Empire Companies is responsible for pursuant Shareholders' Agent to Section 11.1(a) hereof, then object to the full amount of Closing Date Balance Sheet within such unpaid costs and expenses 20-day period shall be accrued for on deemed to be an acceptance by the Shareholders of the Closing Date Balance Sheet. If any adjustments to the Closing Date Balance Sheet are proposed by the Shareholders' Agent within such 20-day period, the dispute shall be resolved as provided in Section 2.1(o).

Closing Date Balance Sheet. (a) As soon as reasonably practicable Within thirty (30) days following the Closing Date, Parent shall prepare a statement based on the Sellers shall provide to the Board of Directors of the Surviving Corporation an audited consolidated Closing Date balance sheet of the Empire Companies as of the Closing Date Company (the "Closing Date Balance SheetStatement"). The Closing Date Balance Sheet Statement will include only the following assets and liabilities: (i) cash; (ii) accounts receivable (less any receivables related to content licenses with respect to which revenue recognition is currently halted as of the Closing Date due to customer collectibility issues); (iii) inventory; (iv) accounts payable, as adjusted to reflect any "Settled Payables" (as hereinafter defined) as provided below; (v) accrued expenses (not including the accounts labeled Accrued Audit Expenses, Accrued for Returns and Miscellaneous Accrued Expenses) and accrued royalties, and (vi) accrued compensation and deferred compensation. With respect to certain accounts payable to be included in the Closing Date Statement (the "Settled Payables"), the Company has entered into written agreements with the subject creditors to accept less than the full amount of such Settled Payables, provided the lesser agreed upon amount (the "Settlement Amount") is paid to such creditor on or before December 15, 2001. For purposes of the Closing Date Statement, the amounts of the Settled Payables shall be audited by KPMG Peat Marwick LLP and deemed to be the Settlement Amounts. The Surviving Corporation shall pay all of the Settled Payables on or before December 15, 2001. The Closing Date Statement shall be prepared on the same basis (including using the same accounting principles and practices) as the most recent financial statements of the Empire Companies referred to in Section 5.8 hereof. It is understood that the Closing Date Balance Sheet will eliminate intercompany transactions, including without limitations, the loans from Empire-US to Empire-Pacific which are reflected as assets on the balance sheets of Empire-US referred to in Section 5.8 hereofaccordance with GAAP. (b) If a majority of In the Continuing Directors disagree with any aspect of event that the amount calculated by subtracting the assets from the liabilities as set forth on the Closing Date Balance SheetStatement (the "Adjusted Net Deficit") is more than $300,000, they may object Parent shall receive in Parent Shares in accordance with the following sentence having a value (based on the Parent Average Price) equal to the Closing Balance Sheet in writing, detailing their disagreement difference between $300,000 and the Adjusted Net Deficit (the Dispute Notice"Excess"). If no Dispute Notice is given Payment pursuant to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet preceding sentence shall be deemed final and binding for all purposes under this Agreement. If made from the Sellers and Escrow Fund by delivery of certificates representing a number of Parent Shares equal to: (i) the majority of Excess divided by (ii) the Continuing Directors fail to resolve such dispute Parent Average Price (the "Excess Shares"), within 45 three (3) business days after the Dispute Notice is given to parties either agree upon the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority amount of the Continuing Directors for a determination, which shall be final and binding upon Excess or the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLPamount is determined as set forth in subsection (c) below. (c) The Sellers Stockholder Representative shall bear have the cost of preparing right to review fully all work papers relating to the Closing Date Balance Sheet Statement in order to confirm that such Closing Date Statement has been determined as provided herein. The Stockholder Representative shall complete its review of such Closing Date Statement within thirty (including 30) days after such determination and related documentation have been made available for their review. If the audit thereof); providedStockholder Representative believes that any adjustment should be made to such Closing Date Statement in order for said amount to be determined in accordance with the requirements of this Section, howeverthe Stockholder Representative shall give Parent written notice of such adjustments. If Parent agrees with the adjustments proposed by the Stockholder Representative, that the Surviving Corporation adjustments shall pay be made to such Closing Date Statement. If there are proposed adjustments which are disputed by Parent, then the Stockholder Representative and Parent shall negotiate in good faith to resolve all disputed adjustments. If, after a period of thirty (30) days following the date on which the Stockholder Representative gives Parent written notice of any proposed adjustments, any such adjustments still remain disputed, Parent and the Stockholder Representative will jointly engage a nationally recognized independent accounting firm (the "Independent Accountant") to resolve any remaining disputed adjustments in accordance with this Agreement. Delivery of Parent Shares required under subsection (b) above shall be made within three (3) business days after the earlier of the agreement of the parties on the amount thereof or a written notice of any resolution of such amount has been given by the Independent Accountant to the parties hereunder. All fees and expenses of any accounting firm retained pursuant the Independent Accountant incurred in connection with such resolution shall be paid by the Parent, and upon payment of such fees and expenses Parent shall be entitled to Section 3.1(b) hereof. (d) If receive from the Escrow Fund, as reimbursement for one-half of such fees and expenses so paid, that number of the Closing Date there remains unpaid any costs and expenses that either Escrow Shares determined by dividing (i) one-half of the Empire Companies is responsible for pursuant to Section 11.1(a) hereof, then the full amount of such unpaid costs fees and expenses shall be accrued for on expenses, by (ii) the Closing Date Balance SheetParent Average Price.

Closing Date Balance Sheet. (a) As soon as reasonably practicable following Within 60 days after the Closing Date, the Sellers shall provide to the Board of Directors of the Surviving Corporation Date an audited consolidated unaudited balance sheet of for the Empire Companies Company shall be prepared as of the Closing Date (the "Closing Date Balance Sheet")) by PentaStar and delivered by PentaStar to the Shareholders. The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared in accordance with GAAP, on a basis consistent with the same basis (including using the same accounting principles and practices) as the most recent financial statements practices of the Empire Companies referred to in Section 5.8 hereofPentaStar. It is understood that the The Closing Date Balance Sheet will eliminate intercompany transactionsshall set forth, including without limitationsin addition to other items required by PentaStar's application of GAAP, the loans from Empireamount, as of the Closing Date, of (A) cash held by the Company in excess of the Interim Cash Requirement, (B) the Interim Cash Requirement, (C) the aggregate amount of accounts receivable, notes receivable and Residual Payment Rights collected by the Company after December 31, 2000 (whether by collection of cash, offset or otherwise, and whether or not any cash or other amount received in respect thereof is on hand or has been used by the Company) as a result of the accelerated collection thereof beyond normal stated terms or outside the ordinary course of business consistent with past practice or as a set-US to Empire-Pacific which are reflected as assets on off against future payments against accounts receivable, notes receivable or Residual Payment Rights, (D) the balance sheets of Empire-US referred to Retained Liabilities described in Section 5.8 hereof. clause (b) If a majority of the Continuing Directors disagree with any aspect definition of Retained Liabilities and each item thereof, and (E) all Closing Date Liabilities and each item thereof. Within 20 days after receipt of the Closing Date Balance Sheet, they may object the Shareholders shall, in a written notice to the Closing Balance Sheet in writingPentaStar, detailing their disagreement (the Dispute Notice). If no Dispute Notice is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing either accept the Closing Date Balance Sheet (including the audit thereof); provided, however, that the Surviving Corporation shall pay the fees and expenses of or object to it by describing in reasonably specific detail any accounting firm retained pursuant proposed adjustments to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs Balance Sheet and expenses that either the estimated amounts of and reasons for such proposed adjustments. The failure by the Empire Companies is responsible for pursuant Shareholders to Section 11.1(a) hereof, then object to the full amount of Closing Date Balance Sheet within such unpaid costs and expenses 20-day period shall be accrued for on deemed to be an acceptance by the Shareholders of the Closing Date Balance Sheet. If any adjustments to the Closing Date Balance Sheet are proposed by the Shareholders within such 20-day period, the dispute shall be resolved as provided in Section 2.1(o).

Closing Date Balance Sheet. (a) As soon as reasonably practicable following Within sixty (60) days after the Closing Date, Shareholder shall prepare and deliver, or cause to be prepared and delivered, to Buyer the Sellers shall provide to the Board of Directors of the Surviving Corporation an audited consolidated balance sheet for the Seller and BATCO as of the Empire Companies as close of business on the Closing Date (the "Closing Date Balance Sheet")) which shall be prepared in accordance with the accounting principles and practices used to prepare the Historic Financial Statements, consistently applied. The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared on include the same basis (including using information necessary to determine the same accounting principles and practices) as the most recent financial statements consolidated Net Working Capital of the Empire Companies referred Seller and BATCO. The Buyer shall permit Transferred Employees (as herein defined) to be reasonably available to the Shareholder to assist the Shareholder in Section 5.8 hereof. It is understood that the preparation of the Closing Date Balance Sheet. (b) Unless the Buyer within 30 days after receipt of the Closing Date Balance Sheet will eliminate intercompany transactionsgives the Shareholder a notice objecting thereto and specifying the basis for such objection and the amount in dispute ("Notice of Objection"), including without limitations, such Closing Date Balance Sheet shall be considered accepted and binding upon the loans from Empire-US to Empire-Pacific which are reflected as assets on Shareholder and Buyer. If within 20 days after the balance sheets of Empire-US referred to in Section 5.8 hereof. (b) If a majority of the Continuing Directors disagree with any aspect receipt of the Closing Date Balance Sheet, they may object Buyer gives a Notice of Objection to the Closing Balance Sheet Shareholder, the Shareholder and Buyer shall negotiate in writing, detailing their disagreement (the Dispute Notice)good faith with a view to resolving any differences. If no Dispute Notice is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors such negotiations fail to resolve such dispute all disputed items within 45 15 days after Notice of Objection was first given by Buyer, the Dispute Notice is given remaining disputed items shall be submitted to Deloitte & Touche (the "Nonpartisan Accountants") for final resolution. After affording the Buyer and its representatives and the Shareholder and its representatives the opportunity to present their positions as to the Sellersdisputed items (which opportunity shall not extend for more than 30 days), then such disagreement the Nonpartisan Accountants shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which resolve all disputed items in writing. Such resolution shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented and shall be reflected in any necessary revisions to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing the Closing Date Balance Sheet (Sheet. The fees, costs and expenses of the Nonpartisan Accountants in connection with any such determination shall be divided evenly between the Shareholder and Buyer. Otherwise, the Shareholder and Buyer shall each pay its costs in connection with this Section, including the audit thereof); fees and expenses of their respective attorneys and accountants, if any. Notwithstanding anything in this Section to the contrary, Buyer shall not contest any item for which the amount in disagreement is less than $10,000, provided, however, that Buyer may contest any disputed item that exceeds $1,000 if the Surviving Corporation shall pay the fees and expenses of any accounting firm retained pursuant to Section 3.1(b) hereof. (d) If as of the Closing Date there remains unpaid any costs and expenses that either of the Empire Companies is responsible for pursuant to Section 11.1(a) hereof, then the full aggregate amount of such unpaid costs and expenses shall be accrued for on the Closing Date Balance Sheetdisputed items exceeds $25,000.

Closing Date Balance Sheet. (a) As soon as reasonably practicable following the Closing Date, the Sellers The Company shall provide to the Board of Directors of the Surviving Corporation an audited consolidated balance sheet of the Empire Companies as of prepare and deliver the Closing Date (Balance Sheet not less than three Business Days prior to the "Closing Date and shall cause the Closing Date Balance Sheet")Sheet to be attached to this Agreement. The Closing Date Balance Sheet shall be audited by KPMG Peat Marwick LLP and shall be prepared on the same basis (including using the same accounting principles and practices) as the most recent financial statements of the Empire Companies referred to in Section 5.8 hereof. It is understood that set forth the Closing Date Balance Sheet will eliminate intercompany transactionsIndebtedness. Any indebtedness for borrowed money, including without limitations, the loans from Empire-US amounts payable pursuant to Empire-Pacific which are reflected as assets on the balance sheets of Empire-US referred to in Section 5.8 hereof. (b) If a majority capital leases of the Continuing Directors disagree with any aspect Company or guarantees of indebtedness of the Company and its Subsidiaries as of the Closing Date Balance Sheet(including principal, they may object to accrued and unpaid interest on all such indebtedness and any penalties or premiums that would be associated with the Closing Balance Sheet in writing, detailing their disagreement (the Dispute Notice). If no Dispute Notice full repayment and retirement of such indebtedness) that is given to the Sellers within 45 days of the date that the Closing Balance Sheet is furnished to the Continuing Directors, the Closing Balance Sheet shall be deemed final and binding for all purposes under this Agreement. If the Sellers and the majority of the Continuing Directors fail to resolve such dispute within 45 days after the Dispute Notice is given to the Sellers, then such disagreement shall be referred to a "big five" accounting firm selected by a majority of the Continuing Directors for a determination, which shall be final and binding upon the parties hereto for all purposes of this Agreement. Unless consented to by the Sellers, such accounting firm shall not be PriceWaterhouseCoopers LLP. (c) The Sellers shall bear the cost of preparing reflected on the Closing Date Balance Sheet and thus not part of the Indebtedness Adjustment Amount, if any (including “Excess Debt”), shall be paid to Parent and shall not be limited to the audit thereof); provided, however, that Threshold Amount or the Surviving Corporation shall pay Deductible Amount. Any Aged Accounts Receivable of the fees Company and expenses of any accounting firm retained pursuant to Section 3.1(b) hereof. (d) If its Subsidiaries as of the Closing Date there remains unpaid that is not reflected on the Statement of Aged Accounts Receivable, if any costs (“Excess Overdue AR”), shall be paid to Parent if, and expenses only to the extent that, such Excess Overdue AR causes the Balance Sheet Adjustment Amount to be greater than zero, and shall not be limited to the Threshold Amount or the Deductible Amount. Parent shall have the right to require that either of the Empire Companies is responsible for Excess Debt and Excess Overdue AR be paid to it (i) first, as an offset from any amount payable under the Aged Accounts Receivable Adjustment pursuant to Section 11.1(a1.5 hereof and (ii) hereof, then thereafter from (A) the full amount of such unpaid costs Escrow Fund or (B) the Shareholders and expenses shall be accrued for Participating Optionholders based on the Closing Date Balance Sheettheir respective Pro Rata Portion.