AGGREGATE, ADVERSELY AFFECT
THE PURCHASER'S ABILITY TO OBTAIN THE BENEFITS OF (FINANCIAL OR OTHERWISE) OF
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENTS.
(C)
DURING THE PERIOD PRIOR TO THE CLOSING
DATE, THE COMPANY WILL NOTIFY THE PURCHASER OF (I) ANY MATERIAL ADVERSE EFFECT
IN THE COMPANY, (II) ANY ACTION THAT IS THREATENED, BROUGHT, ASSERTED OR
COMMENCED AGAINST THE COMPANY OR ANY OF ITS SUBSIDIARIES WHICH WOULD HAVE BEEN
LISTED IN SCHEDULE 3.11 OF THE COMPANY DISCLOSURE LETTER IF SUCH ACTION HAD
ARISEN PRIOR TO THE DATE HEREOF, (III) ANY NOTICE OR OTHER COMMUNICATION FROM
ANY THIRD PERSON ALLEGING THAT THE CONSENT OF SUCH THIRD PERSON IS OR MAY BE
REQUIRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
AGREEMENTS AND (IV) ANY MATERIAL DEFAULT UNDER ANY COMPANY AGREEMENT OR EVENT
WHICH, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD BECOME SUCH A DEFAULT ON OR
PRIOR TO THE CLOSING DATE AND OF WHICH THE COMPANY HAS KNOWLEDGE.
5.4
ACCESS; INFORMATION RIGHTS.
(A)
EXCEPT AS
OTHERWISE EXPRESSLY CONTEMPLATED BY THE TERMS OF THIS AGREEMENT OR AGREED IN
WRITING BY THE PURCHASER, FROM AND AFTER THE DATE HEREOF AND FOR SO LONG AS
(X) THE NOTE REMAINS OUTSTANDING, (Y) THE PURCHASER OWNS AT LEAST 5% OF THE
VOTING SECURITIES OR (Z) THE PURCHASER IS REQUIRED TO INCLUDE OR REFLECT THE
FINANCIAL RESULTS OF THE COMPANY IN THE PURCHASER'S FINANCIAL STATEMENTS
INCLUDED IN ITS REPORTS FILED WITH THE COMMISSION (COLLECTIVELY, THE "HOLDING
PERIOD"), UPON REASONABLE NOTICE, THE COMPANY SHALL (AND SHALL CAUSE ITS
SUBSIDIARIES TO) PERMIT (I) THE OFFICERS, EMPLOYEES, ACCOUNTANTS, COUNSEL,
FINANCIAL ADVISORS AND OTHER REPRESENTATIVES OF THE PURCHASER REASONABLE ACCESS
DURING NORMAL BUSINESS HOURS TO ALL OF ITS BOOKS, RECORDS, PROPERTIES AND
PERSONNEL (INCLUDING THE ABILITY TO DISCUSS THE COMPANY'S AFFAIRS, FINANCES AND
ACCOUNTS WITH ITS OFFICERS) AND (II) REASONABLE ACCESS DURING NORMAL BUSINESS
HOURS FOR THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM OF THE PURCHASER TO
PERFORM AUDIT PROCEDURES AS NEEDED TO SUPPORT WORK ON THE PURCHASER'S AUDIT.
*CONFIDENTIAL TREATMENT REQUESTED
37
(B)
DURING THE HOLDING PERIOD, THE COMPANY SHALL
DELIVER TO THE PURCHASER:
(I)
AS SOON AS PRACTICABLE, BUT IN ANY EVENT
WITHIN NINETY (90) DAYS AFTER THE END OF EACH FISCAL YEAR OF THE COMPANY, AN
INCOME STATEMENT FOR SUCH FISCAL YEAR, A BALANCE SHEET OF THE COMPANY AND
STATEMENT OF STOCKHOLDERS' EQUITY AS OF THE END OF SUCH YEAR, AND A SCHEDULE AS
TO THE SOURCES AND APPLICATIONS OF FUNDS FOR SUCH YEAR, SUCH YEAR-END FINANCIAL
REPORTS TO BE IN REASONABLE DETAIL, PREPARED IN ACCORDANCE WITH GAAP, AND
AUDITED AND CERTIFIED BY INDEPENDENT PUBLIC ACCOUNTANTS OF NATIONALLY RECOGNIZED
STANDING SELECTED BY THE COMPANY;
(II)
AS SOON AS PRACTICABLE, BUT IN ANY EVENT
WITHIN FORTY-FIVE (45) DAYS AFTER THE END OF EACH OF THE FIRST THREE
(3) QUARTERS OF EACH FISCAL YEAR OF THE COMPANY, AN UNAUDITED PROFIT OR LOSS
STATEMENT AND SCHEDULE AS TO THE SOURCES AND APPLICATION OF FUNDS FOR SUCH
FISCAL QUARTER AND AN UNAUDITED BALANCE SHEET AS OF THE END OF