OR THAT IS NECESSARY TO COMPLETE
OR CORRECT (I) ANY INFORMATION IN SUCH DISCLOSURE SCHEDULE THAT IS OR HAS BEEN
RENDERED UNTRUE, INACCURATE, INCOMPLETE OR MISLEADING, (II) ANY REPRESENTATION
OR WARRANTY OF SUCH PARTY IN THIS AGREEMENT THAT CONTAINS A QUALIFICATION AS TO
MATERIALITY OR MATERIAL ADVERSE EFFECT THAT HAS BEEN RENDERED UNTRUE OR
INACCURATE, IN ANY RESPECT, THEREBY OR (III) ANY REPRESENTATION OR WARRANTY OF
SUCH PARTY IN THIS AGREEMENT THAT IS NOT SO QUALIFIED AND THAT HAS BEEN RENDERED
UNTRUE OR INACCURATE, IN ANY MATERIAL RESPECT, THEREBY.
DELIVERY OF SUCH
SUPPLEMENTS SHALL BE FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT EXPAND OR
LIMIT THE RIGHTS OR AFFECT THE OBLIGATIONS OF ANY PARTY HEREUNDER.
SUCH
SUPPLEMENTS SHALL NOT CONSTITUTE A PART OF THE FOREST DISCLOSURE SCHEDULE, THE
SPINCO DISCLOSURE SCHEDULE OR THE COMPANY DISCLOSURE SCHEDULE, AS THE CASE MAY
BE, FOR PURPOSES OF THIS AGREEMENT.
65
(B)
EACH OF FOREST, SPINCO, THE COMPANY AND MERGER SUB SHALL GIVE
PROMPT NOTICE TO THE OTHER OF THE OCCURRENCE OR NONOCCURRENCE OF ANY EVENT THE
OCCURRENCE OR NONOCCURRENCE OF WHICH HAS CAUSED OR IS REASONABLY LIKELY TO CAUSE
(I) ANY COVENANT OR AGREEMENT OF SUCH PARTY CONTAINED IN THIS AGREEMENT NOT TO
BE PERFORMED OR COMPLIED WITH, IN ANY MATERIAL RESPECT OR (II) ANY CONDITION
CONTAINED IN ARTICLE VII TO BECOME INCAPABLE OF BEING FULFILLED AT OR PRIOR TO
THE EFFECTIVE TIME; PROVIDED, HOWEVER, THAT THE DELIVERY OF ANY NOTICE PURSUANT
TO THIS SECTION 6.16(B) SHALL NOT CURE SUCH BREACH OR NONCOMPLIANCE OR LIMIT OR
OTHERWISE AFFECT THE REMEDIES AVAILABLE HEREUNDER TO THE PARTY RECEIVING SUCH
NOTICE.
(C)
EACH OF THE PARTIES HERETO SHALL KEEP THE OTHERS INFORMED ON A
TIMELY BASIS AS TO THE STATUS OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION AGREEMENTS AND THE OBTAINING OF ALL NECESSARY AND APPROPRIATE
EXEMPTIONS, RULINGS, CONSENTS, AUTHORIZATIONS AND WAIVERS RELATED THERETO.
Section 6.17
Obligations of Merger Sub.
The Company shall take all
action necessary to cause Merger Sub to perform its obligations under this
Agreement and to consummate the Merger on the terms and subject to the
conditions set forth in this Agreement.
Section 6.18
Accounting Matters.
The parties will use their
commercially reasonable efforts to ensure that, following the Effective Time,
the Company will establish a fiscal year ending on December 31.
Section 6.19
Reorganization Treatment.
(A)
FOREST (WITH RESPECT TO SPINCO) AND THE COMPANY (ON ITS BEHALF AND
ON BEHALF OF MERGER SUB) SHALL EXECUTE AND DELIVER TO EACH OF WEIL, GOTSHAL &
MANGES LLP, SPECIAL TAX COUNSEL TO FOREST AND SPINCO, AND BAKER BOTTS L.L.P.,
COUNSEL TO THE COMPANY, CERTIFICATES SUBSTANTIALLY IN THE FORMS ATTACHED HERETO
AS EXHIBITS G AND H AT SUCH TIME OR TIMES AS REASONABLY REQUESTED BY EACH SUCH
LAW FIRM IN CONNECTION WITH ITS DELIVERY OF THE OPINION REFERRED TO IN SECTION
7.2(C) OR SECTION 7.3(C), AS THE CASE MAY BE.
PRIOR TO THE EFFECTIVE TIME,
NEITHER FOREST, SPINCO, THE COMPANY OR MERGER SUB SHALL TAKE OR CAUSE TO BE
TAKEN ANY ACTION WHICH WOULD