Common use of Final Closing Balance Sheet Clause in Contracts

Final Closing Balance Sheet. The Final Closing Balance Sheet --------------------------- of Company shall be prepared as follows: (i) During a period of thirty (30) days following the Closing Date, Shareholders, in consultation with Buyer, shall prepare and deliver to Buyer a balance sheet of Company as of the Effective Time, prepared in accordance with generally accepted accounting principles from the books and records of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure), on a basis consistent with the generally accepted accounting principles followed in the preparation of the GAAP- Adjusted Recent Balance Sheet, and fairly presenting the financial position of Company as of the Effective Time. The balance sheet shall be accompanied by detailed schedules and by a report (1) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the balance sheet, and (2) setting forth the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to Section 2.02(c) hereof. (ii) If, thirty (30) days after the Closing Date, Buyer and Shareholders have not agreed on the balance sheet and report described in (i) above, then Buyer's independent accountants ("Buyer's Accountants") shall prepare such balance sheet and report and deliver it to Shareholders no later than forty-five (45) days after the Closing Date. (iii) Within thirty (30) days following the delivery of the balance sheet referred to in (ii) above, Shareholders or their independent accountants ("Shareholders' Accountants") may object to any of the information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders pursuant to Section 2.02 hereof. Any such objection shall be made in writing and shall state Shareholders' determination of the amount of the Working Capital Value and Indebtedness Amount. (iv) In the event of a dispute or disagreement relating to the balance sheet or schedules which Buyer and Shareholders are unable to resolve, either party may elect to have all such disputes or disagreements resolved by an accounting firm of nationally recognized standing (the "Third Accounting Firm") to be mutually selected by Shareholders and Buyer or, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution of the balance sheet of Company as of the Effective Time and the calculations of Working Capital Value and Indebtedness Amount, which shall be final and binding for purposes of this Article II. The Third Accounting Firm shall be instructed to use every reasonable effort to perform its services within fifteen (15) days of submission of the balance sheet to it and, in any case, as soon as practicable after such submission. The fees and expenses for the services of the Third Accounting Firm shall be shared by Buyer and Shareholders as follows:

Final Closing Balance Sheet. The Final Closing Balance Sheet --------------------------- of Company shall be prepared as follows: (i) During a period of thirty (30) Not later than 30 days following after the Closing Date, Shareholders, in consultation with Buyer, the Purchaser shall prepare and deliver to Buyer cause a consolidated balance sheet of Company the Corporation and the Subsidiaries as of at the Effective TimeClosing Date to be prepared and delivered to the Vendors' Representative, which balance sheet shall be prepared in accordance with generally accepted accounting principles from the books and records of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure), on a basis manner consistent with the generally accepted accounting principles followed in the preparation that of the GAAP- Adjusted Recent Balance Sheetbalance sheet comprising the Audited Financial Statements, and fairly presenting the financial position of Company as which shall include a calculation of the Effective Time. The balance sheet shall be accompanied by detailed schedules and by a report Net Cash as at the Closing Date (1) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the which balance sheet, and (2) setting forth together with the amount calculation of any adjustment to the Purchase Price to be paid and by whom pursuant to Section 2.02(c) hereof. (ii) If, thirty (30) days after Net Cash as at the Closing Date, Buyer is hereinafter referred to as the "FINAL CLOSING BALANCE SHEET"). The Purchaser shall provide the Vendors' Representative with reasonable access to the Corporation's financial records and Shareholders have not agreed working papers to assist in its review of the Final Closing Balance Sheet. If the Vendors' Representative notifies the Purchaser that it agrees with the Final Closing Balance Sheet within 30 days after receipt thereof or fails to deliver notice to the Purchaser of its disagreement therewith within such 30 day period, the Final Closing Balance Sheet shall be conclusive and binding on the balance sheet Purchaser and report described the Vendors and the parties shall be deemed to have agreed thereto, in (i) abovethe first case, on the date the Purchaser receives the notice and, in the second case, on such 30th day. If the Vendors' Representative notifies the Purchaser of its disagreement with the Final Closing Balance Sheet within such 30 day period, then Buyer's independent accountants ("Buyer's Accountants") the Purchaser and the Vendors' Representative shall prepare such balance sheet and report and deliver it attempt, in good faith, to Shareholders no later than forty-five (45) resolve their differences with respect thereto within 30 days after the Closing Date. (iii) Within thirty (30) days following the delivery Purchaser's receipt of the balance sheet referred to in Vendors' Representative's notice of disagreement. Any disagreement over the Final Closing Balance Sheet (ii) above, Shareholders or their independent accountants (a "Shareholders' AccountantsBALANCE SHEET DISPUTE") not resolved by the Purchaser and the Vendors' Representative within such 30 day period shall be submitted KPMG, Toronto, or such other nationally recognized accounting firm as the Vendors' Representative and the Purchaser may object to any of the information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders agree, provided that if there is a Balance Sheet Dispute pursuant to Section 2.02 hereof. Any such objection both sections 2.11 and 2.13 the same accounting firm shall be made in writing employed (the "ACCOUNTANTS"). The Accountants shall act as experts, not as arbitrators, and shall state Shareholders' the determination of the amount Accountants shall, in the absence of manifest error, be final and binding on the Vendors and the Purchaser. The fees and expenses of the Working Capital Value and Indebtedness Amount. (iv) In Accountants, together with the event of a dispute or disagreement relating to costs, including the balance sheet or schedules which Buyer and Shareholders are unable to resolve, either party may elect to have all such disputes or disagreements resolved by an accounting firm of nationally recognized standing (the "Third Accounting Firm") to be mutually selected by Shareholders and Buyer or, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution legal expenses of the balance sheet of Company as parties, shall be in the discretion of the Effective Time and the calculations of Working Capital Value and Indebtedness AmountAccountants, which determination shall be final and binding on the Vendors and the Purchaser. The Final Closing Balance Sheet, amended to reflect the resolution of each Balance Sheet Dispute as agreed in writing between the Vendors' Representative and the Purchaser or as determined by the Accountants, as the case may be, shall constitute the "FINAL CLOSING BALANCE SHEET" for the purposes of this Article II. The Third Accounting Firm shall be instructed to use every reasonable effort to perform its services within fifteen (15) days of submission of the balance sheet to it and, in any case, as soon as practicable after such submission. The fees and expenses for the services of the Third Accounting Firm shall be shared by Buyer and Shareholders as follows:Agreement.

Final Closing Balance Sheet. The Final Closing Balance Sheet of --------------------------- of Company shall be prepared as follows: (i) During a period of thirty Within forty-five (3045) days following after the Closing Date, Shareholders, in consultation with Buyer, Buyer shall prepare and deliver to Buyer Shareholders a pro forma balance sheet of Company the PA Division as of the Effective Time, prepared in accordance with generally accepted accounting principles from the books and records of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure)Company, on a basis consistent with the generally accepted accounting principles theretofore followed by Company in the preparation of the GAAP- Adjusted Recent Balance SheetSheet and in accordance with this Section 2.03, and fairly presenting the financial position of Company the PA Division as of the Effective Time. The balance sheet shall be accompanied by detailed schedules and by a report of Buyer's independent accounts ("Buyer's Accountants") setting forth (1) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the balance sheet, and (2) setting forth the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to Section 2.02(c) hereof, which adjustment shall be calculated in a manner consistent with the calculations used to arrive at the number set forth in Section 2.03(d)(ii). (ii) If, thirty (30) days after the Closing Date, Buyer and Shareholders have not agreed on the balance sheet and report described in (i) above, then Buyer's independent accountants ("Buyer's Accountants") shall prepare such balance sheet and report and deliver it to Shareholders no later than forty-five (45) days after the Closing Date. (iii) Within thirty (30) days following the delivery of the balance sheet referred to in (iii) above, Shareholders or their independent accountants ("Shareholders' Accountants") may object to any of the information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders adjustment to Purchase Price pursuant to Section 2.02 2.02(c) hereof. Any such objection shall be made in writing and shall state Shareholders' determination calculation of the amount of the Working Capital Value and Indebtedness Amount. (iviii) In the event of a dispute or disagreement relating to the such balance sheet or accompanying schedules which Buyer and Shareholders are unable to resolve, either party may elect to have all such disputes dispute or disagreements disagreement resolved by an accounting firm of nationally recognized standing (the "Third Accounting Firm") to be mutually selected by Shareholders and Buyer or, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution of the balance sheet of Company as of the Effective Time and the calculations of Working Capital Value and Indebtedness Amount, which shall be final and binding for purposes of this Article II. The Third Accounting Firm shall be instructed to use every reasonable effort to perform its services within fifteen (15) days of submission of the balance sheet to it and, in any case, as soon as practicable after such submission. The fees and expenses for the services of the Third Accounting Firm shall be shared by Buyer and Shareholders as follows:

Final Closing Balance Sheet. (i) The Final Sellers shall have 20 Business Days following receipt of the Preliminary Closing Balance Sheet --------------------------- in which to notify the Purchaser of Company any dispute, disagreement or requested clarification ("DISPUTE") of any item contained therein, which notice shall be prepared as follows: (i) During set forth in reasonable detail the basis for such Dispute. The Purchaser and Sellers shall cooperate in good faith to resolve any Dispute for a period of thirty (30) days 20 Business Days following the Closing Date, Shareholders, in consultation with Buyer, shall prepare and deliver to Buyer a balance sheet date of Company as receipt by the Purchaser of the Effective TimeSellers' notice of Dispute. If the Dispute is resolved within such period, prepared the Preliminary Closing Balance Sheet shall be revised by the Purchaser, if necessary, to be in accordance with generally accepted accounting principles from the books and records of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure), on a basis consistent with the generally accepted accounting principles followed in the preparation agreement of the GAAP- Adjusted Recent Balance SheetPurchaser and Sellers, and fairly presenting shall thereupon become the financial position of Company as of "FINAL CLOSING BALANCE SHEET," and shall become final and be considered accepted by the Effective Time. The balance sheet shall be accompanied by detailed schedules and by a report (1) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the balance sheet, and (2) setting forth the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to Section 2.02(c) hereofparties. (ii) IfIf the Sellers do not notify the Purchaser of any Dispute within 20 Business Days of receipt of the Preliminary Closing Balance Sheet, thirty (30) days after the Preliminary Closing DateBalance Sheet shall be deemed to be the Final Closing Balance Sheet without revision or change, Buyer and Shareholders have not agreed on shall become final and be considered accepted by the balance sheet and report described in (i) above, then Buyer's independent accountants ("Buyer's Accountants") shall prepare such balance sheet and report and deliver it to Shareholders no later than forty-five (45) days after the Closing Dateparties. (iii) Within thirty (30) days following If the delivery of the balance sheet referred to in (ii) above, Shareholders or their independent accountants ("Shareholders' Accountants") may object to any of the information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders pursuant to Section 2.02 hereof. Any such objection shall be made in writing Purchaser and shall state Shareholders' determination of the amount of the Working Capital Value and Indebtedness Amount. (iv) In the event of a dispute or disagreement relating to the balance sheet or schedules which Buyer and Shareholders Sellers are unable to resolveresolve any such Dispute, either party may elect to have all such disputes or disagreements Dispute shall be resolved by an a mutually acceptable accounting firm of nationally recognized national standing (in the "Third Accounting Firm") to United States, provided, however, there shall be mutually selected by Shareholders and Buyer orexcluded from such role the parties' regular accounting firms, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution any accounting firms involved in the review of the balance sheet of Company as prior to the consummation of the Effective Time transactions contemplated by this Agreement and any accounting firms involved in the calculations preparation, review or audit of Working Capital Value the Preliminary Closing Balance Sheet. If the Purchaser and Indebtedness AmountSellers fail to mutually agree upon such accounting firm, which Ernst & Young, LLP, shall be final and binding for purposes of this Article II. The Third Accounting Firm shall be instructed selected as the accounting firm to use every reasonable effort to perform its services within fifteen (15) days of submission of the balance sheet to it and, in any case, as soon as practicable after resolve such submissionDispute. The fees and expenses for of such firm will be paid by the services of party who does not prevail in such resolution by the Third Accounting Firm shall be shared by Buyer and Shareholders as follows:accounting firm.

Final Closing Balance Sheet. (a) Not later than sixty (60) days after the Closing Date, the Seller shall cause the consolidated balance sheet of the Company to be prepared as of the Effective Time in accordance with GAAP (however, no current or deferred income taxes, payable or receivable, shall be reflected on such balance sheet), and shall deliver such balance sheet to the Buyer (the "Preliminary Closing Balance Sheet"). The Final Seller shall also prepare and deliver to the Buyer with the Preliminary Closing Balance Sheet --------------------------- a schedule setting forth its calculation of Company shall be prepared Net Book Value based on the Preliminary Closing Balance Sheet as follows:of the Effective Time. (ib) During a period of If, within thirty (30) days following the Closing Date, Shareholders, in consultation with Buyer, shall prepare and deliver to Buyer a balance sheet of Company as its receipt of the Effective Time, prepared in accordance with generally accepted accounting principles from the books and records of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure), on a basis consistent with the generally accepted accounting principles followed in the preparation of the GAAP- Adjusted Recent Preliminary Closing Balance Sheet, and fairly presenting the financial position Buyer does not dispute the Preliminary Closing Balance Sheet and/or the Seller's calculation of Company as of the Effective Time. The Net Book Value, such balance sheet shall be accompanied by detailed schedules and by a report (1) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the balance sheet, and (2) setting forth the amount of any adjustment to the Purchase Price deemed to be paid and by whom pursuant to Section 2.02(cthe closing balance sheet of the Company (the "Final Closing Balance Sheet") hereoffor all purposes under this Agreement. (iic) IfIn the event the Buyer has any dispute with regard to the calculation of Net Book Value, such dispute shall be resolved in the following manner. (i) The Buyer shall notify the Seller in writing within thirty (30) days after the Buyer's receipt of the Preliminary Closing DateBalance Sheet, which notice shall specify in reasonable detail the nature of the dispute. (ii) During the thirty (30) day period following the Seller's receipt of such notice, the Buyer and Shareholders have not agreed on the balance sheet Seller shall attempt to resolve such dispute and report described in (i) above, then Buyer's independent accountants ("Buyer's Accountants") shall prepare such balance sheet and report and deliver it to Shareholders no later than forty-five (45) days after determine the Closing Datefinal calculation of Net Book Value. (iii) Within If, at the end of the thirty (30) day period specified in subsection (c) (ii) above, the Buyer and the Seller shall have failed to reach a written agreement with respect to all or a portion of such dispute (those items that remain in dispute at the end of such period are the "Unresolved Changes"), the matter shall be referred to the Neutral Auditors within ten (10) days of the end of such period. (iv) Each party hereto agrees to execute, if requested by the Neutral Auditors, a reasonable engagement letter. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditors shall be borne pro rata by the Seller and the Buyer in proportion to the allocation of the dollar amount of the Unresolved Changes, in the aggregate, between the Buyer and the Seller made by the Neutral Auditors such that the party with whom the Neutral Auditors agree more closely pays a lesser proportion of the fees and expenses. The Neutral Auditors shall act as an arbitrator to determine, based solely on the provisions of this Agreement and the presentations by the Seller and the Buyer, or representatives thereof, and not by independent review, only the resolution of the Unresolved Changes. The Neutral Auditors' resolution of the Unresolved Changes, which for each of the Unresolved Changes shall be within the range of values of the amount claimed by either party as to any of the Unresolved Changes, shall be made within thirty (30) days following the delivery of the balance sheet referred submission of the Unresolved Changes to the Neutral Auditors, shall be set forth in a written statement delivered to the Seller and the Buyer and shall be deemed to be mutually agreed upon by the Buyer and the Seller for all purposes of this Agreement. Any changes to the Preliminary Closing Balance Sheet resulting from such resolution of the Unresolved Changes shall be made, and such Preliminary Closing Balance Sheet, as so changed shall be the Final Closing Balance Sheet. (d) During the preparation of the Preliminary Closing Balance Sheet and the period of any dispute within the contemplation of this Section 2.4, the Buyer shall, and shall cause the Company to, (i) provide the Seller and the Seller's authorized representatives with full access to the books, records, facilities and employees of the Company and the Subsidiary, (ii) aboveprovide the Seller, Shareholders or their independent accountants within ten ("Shareholders' Accountants"10) may object to any of Business Days after the Closing Date, with month-end financial information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders pursuant to Section 2.02 hereof. Any such objection shall be made in writing and shall state Shareholders' determination of the amount of the Working Capital Value and Indebtedness Amount. (iv) In the event of a dispute or disagreement relating to the balance sheet or schedules which Buyer and Shareholders are unable to resolve, either party may elect to have all such disputes or disagreements resolved by an accounting firm of nationally recognized standing (the "Third Accounting Firm") to be mutually selected by Shareholders and Buyer or, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution of the balance sheet of Company as of the Effective Time Time, including any information on magnetic tape or diskette requested by the Seller (such information to be consistent with that prepared by the Company in the Ordinary Course of Business prior to the Closing), (iii) cooperate fully with the Seller and the calculations of Working Capital Value Seller's authorized representatives, including providing, on a timely basis, all information necessary or useful in preparing the Preliminary Closing Balance Sheet, and Indebtedness Amount, which shall be final and binding for purposes of this Article II. The Third Accounting Firm shall be instructed to use every reasonable effort to perform its services within fifteen (15) days of submission require Company Employees who become employees of the balance sheet Buyer to it and, assist the Seller and the Seller's authorized representatives in any case, as soon as practicable after such submission. The fees and expenses for the services preparation of the Third Accounting Firm shall be shared by Buyer and Shareholders as follows:Preliminary Closing Balance Sheet.

Final Closing Balance Sheet. Within 15 days after the Delivery Date, Interland shall have completed a review of the Preliminary Closing Balance Sheet. After such review, if Interland and the Stockholder Representative reach agreement on the Preliminary Closing Balance Sheet, such balance sheet shall be the "Final Closing Balance Sheet." If however, Interland and the Stockholder Representative are unable to reach agreement on the Preliminary Closing Balance Sheet within 30 days after Interland's completed review, then the parties shall submit the matter to such "Big Four" public accounting firm as is acceptable to the parties hereto (the "Accountants") for resolution. Such resolution by the Accountants shall be set forth in a written report ("Accountants Report") delivered by the Accountants to the parties hereto within 15 days following the submission of such dispute to the Accountants and the Preliminary Closing Balance Sheet as modified in accordance with the Accountant's Report shall be the "Final Closing Balance Sheet" and shall be final and binding upon the parties hereto. The Net Debt of Trellix as reflected on the Final Closing Balance Sheet --------------------------- of Company shall be prepared as follows: (i) During a period of thirty (30) days following the Closing Date, Shareholders, in consultation with Buyer, Net Debt of Trellix. Any amounts due shall prepare and deliver to Buyer a balance sheet of Company as of the Effective Time, prepared be distributed in accordance with generally accepted accounting principles from the books and records terms of Company (except, in the case of unaudited financial statements, for the absence of footnote disclosure), on a basis consistent with the generally accepted accounting principles followed in the preparation of the GAAP- Adjusted Recent Balance Sheet, and fairly presenting the financial position of Company as of the Effective Time. The balance sheet shall be accompanied by detailed schedules and by a report (1Section 2.3(a) setting forth the amount of Working Capital Value and Indebtedness Amount (as defined above) reflected in the balance sheet, and (2) setting forth the amount of any adjustment to the Purchase Price to be paid and by whom pursuant to Section 2.02(c) hereof. (ii) If, thirty (30) days after the Closing Date, Buyer and Shareholders have not agreed on the balance sheet and report described in (i) above, then Buyer's independent accountants ("Buyer's Accountants") shall prepare such balance sheet and report and deliver it to Shareholders no later than forty-five (45) days after the Closing Date. (iii) Within thirty (30) days within one calendar week following the delivery of the balance sheet referred to in (ii) above, Shareholders or their independent accountants ("Shareholders' Accountants") may object to any of the information contained in said balance sheet or accompanying schedules or reports which could affect the necessity or amount of any payment by Buyer or Shareholders pursuant to Section 2.02 hereof. Any such objection shall be made in writing and shall state Shareholders' determination of the amount of the Working Capital Value and Indebtedness Amount. (iv) In the event of a dispute or disagreement relating Accountants Report to the balance sheet or schedules which Buyer and Shareholders are unable to resolve, either party may elect to have all such disputes or disagreements resolved by an accounting firm of nationally recognized standing (the "Third Accounting Firm") to be mutually selected by Shareholders and Buyer or, if no agreement is reached, by Shareholders' Accountants and Buyer's Accountants. The Third Accounting Firm shall make a resolution of the balance sheet of Company as of the Effective Time and the calculations of Working Capital Value and Indebtedness Amount, which shall be final and binding for purposes of this Article II. The Third Accounting Firm shall be instructed to use every reasonable effort to perform its services within fifteen (15) days of submission of the balance sheet to it and, in any case, as soon as practicable after such submissionparties hereto. The fees charged by the Accountants shall be paid 50% by the Stockholders and expenses for the services 50% by Interland. The portion of the Third Accounting Firm fees payable by the Stockholders shall be shared by Buyer and Shareholders as follows:deducted from the Net Debt Shortfall Escrow, if sufficient funds are available, or if not, from the Indemnity Escrow.