WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED, AN INFORMATION STATEMENT (TOGETHER WITH ANY
AMENDMENTS THEREOF OR SUPPLEMENTS THERETO, THE "INFORMATION STATEMENT") TO
PROVIDE NOTICE TO SUCH STOCKHOLDERS OF THE ACTION TAKEN BY WRITTEN CONSENT IN
LIEU OF A MEETING TO APPROVE THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED
HEREBY, AS REQUIRED BY SECTION 228(E) OF THE DELAWARE GENERAL CORPORATION LAW.
THE SELLER REPRESENTS AND WARRANTS TO BUYER THAT THE INFORMATION STATEMENT WILL
NOT, AT THE TIME IT IS FIRST MAILED TO THE SELLER'S STOCKHOLDERS, CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT REQUIRED
TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING; PROVIDED,
HOWEVER, THAT THE SELLER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY
INFORMATION CONTAINED IN THE INFORMATION STATEMENT FURNISHED TO THE SELLER BY
BUYER OR ANY OF ITS AFFILIATES.
NO AMENDMENT OR SUPPLEMENT TO THE INFORMATION
STATEMENT WILL BE MADE BY THE SELLER WITHOUT THE APPROVAL OF BUYER, WHICH SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED.
6.12
NOTICES TO SELLER SECURITYHOLDERS AND EMPLOYEES.
(A)
SELLER SHALL TIMELY PROVIDE TO HOLDERS OF
SELLER CAPITAL STOCK AND SELLER OPTIONS ALL ADVANCE NOTICES REQUIRED TO BE GIVEN
TO SUCH HOLDERS IN CONNECTION WITH THIS AGREEMENT, THE ASSET PURCHASE AND THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT UNDER THE SELLER OPTION PLAN OR
OTHER APPLICABLE CONTRACTS.
(B)
SELLER SHALL GIVE ALL NOTICES AND OTHER
INFORMATION REQUIRED TO BE GIVEN TO THE EMPLOYEES OF SELLER AND ANY APPLICABLE
GOVERNMENTAL AUTHORITY UNDER THE CODE, THE WORKER ADJUSTMENT AND RETRAINING
NOTIFICATION ACT OF 1988, IF APPLICABLE AND OTHER APPLICABLE LAW IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR OTHER APPLICABLE
CONTRACTS.
6.13
AUDITED FINANCIAL STATEMENTS.
AS SOON AS
PRACTICABLE, SELLER AGREES TO FURNISH OR CAUSE TO BE FURNISHED TO BUYER THE
AUDITED BALANCE SHEET OF SELLER AS OF DECEMBER 31, 2003, AND THE RELATED AUDITED
STATEMENTS OF OPERATIONS, STATEMENTS OF CASH FLOWS AND STATEMENTS OF CHANGES IN
STOCKHOLDERS' EQUITY FOR THE YEAR ENDED DECEMBER 31, 2003, AND ANY NOTES TO THE
FOREGOING FINANCIAL STATEMENTS (THE "2003 AUDITED FINANCIAL STATEMENTS").
6.14
CLOSING BALANCE SHEET.
BY THE LATER OF MAY 31ST,
2004 AND TWO WEEKS FROM CLOSING, SELLER SHALL DELIVER TO BUYER THE CLOSING
BALANCE SHEET.
IN CONNECTION WITH THE PREPARATION OF THE CLOSING BALANCE SHEET
BUYER SHALL PROVIDE SELLER AND SELLER'S INDEPENDENT AUDITORS AND AUTHORIZED
REPRESENTATIVES FULL ACCESS AT ALL REASONABLE TIMES TO THE PROPERTIES, BOOKS,
RECORDS AND PERSONNEL OF THE BUSINESS IN THEIR POSSESSION, CUSTODY OR CONTROL
RELATING TO PERIODS PRIOR TO THE CLOSING DATE FOR PURPOSES OF PREPARING THE
CLOSING BALANCE SHEET.
BUYER SHALL PAY ALL REASONABLE COSTS AND EXPENSES OF
SELLER'S INDEPENDENT AUDITORS INCURRED IN CONNECTION WITH THE PREPARATION AND
REVIEW OF THE CLOSING BALANCE SHEET.
BUYER SHALL PAY THE REASONABLE COSTS AND
EXPENSES INCURRED BY SELLER TO RETAIN MR. TIM LAW, OR A SIMILARLY QUALIFIED
PERSON, FOR A PERIOD OF NO MORE THAN 30 DAYS