TO BUYER PRIOR TO AND FOR A PERIOD OF TWELVE
(12) MONTHS FOLLOWING CLOSING ANY AND ALL EXISTING INFORMATION AND DOCUMENTS IN
THE POSSESSION OF SELLER THAT BUYER MAY REASONABLY REQUIRE TO COMPLY WITH
BUYER'S TAX AND FINANCIAL REPORTING REQUIREMENTS AND AUDITS.
WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, SELLER WILL USE ITS COMMERCIALLY REASONABLE
EFFORTS AFTER EXECUTION OF THIS AGREEMENT AND FOR TWELVE (12) MONTHS FOLLOWING
CLOSING TO COOPERATE WITH THE INDEPENDENT AUDITORS CHOSEN BY BUYER ("BUYER'S
AUDITOR") IN CONNECTION WITH THEIR AUDIT OF ANY FINANCIAL STATEMENTS OF THE
COMPANY THAT BUYER OR ANY OF ITS AFFILIATES REQUIRES TO COMPLY WITH THEIR TAX
AND FINANCIAL REPORTING REQUIREMENTS, AND THEIR REVIEW OF ANY INTERIM QUARTERLY
FINANCIAL STATEMENTS OF THE COMPANY THAT BUYER REQUIRES TO COMPLY WITH SUCH
REPORTING REQUIREMENTS.
SELLER'S COOPERATION WILL INCLUDE (I) SUCH REASONABLE
ACCESS TO SELLER'S EMPLOYEES WHO WERE RESPONSIBLE FOR PREPARING THE
FINANCIALSTATEMENTS AND WORK PAPERS AND OTHER SUPPORTING DOCUMENTS USED IN THE
PREPARATION OF SUCH FINANCIAL STATEMENTS AS MAY BE REQUIRED BY BUYER'S AUDITOR
TO PERFORM AN AUDIT IN ACCORDANCE WITH GENERALLY ACCEPTED AUDITING STANDARDS,
AND (II) DELIVERY OF ONE OR MORE CUSTOMARY REPRESENTATION LETTERS (IN
SUBSTANTIALLY THE FORM PREVIOUSLY APPROVED BY SELLER AND BUYER) FROM SELLER TO
BUYER'S AUDITOR THAT ARE REQUESTED BY BUYER TO ALLOW SUCH AUDITORS TO COMPLETE
AN AUDIT (OR REVIEW OF ANY INTERIM QUARTERLY
34
FINANCIALS), AND TO ISSUE AN OPINION THAT IN BUYER'S EXPERIENCE IS ACCEPTABLE
WITH RESPECT TO AN AUDIT OR REVIEW OF THOSE FINANCIALSTATEMENTS REQUIRED
PURSUANT TO THIS SECTION.
BUYER WILL REIMBURSE SELLER, WITHIN THREE
(3) BUSINESS DAYS AFTER DEMAND THEREFOR, FOR ANY REASONABLE OUT-OF-POCKET AND
OVERHEAD COSTS WITH RESPECT TO ANY COSTS INCURRED BY SELLER IN COMPLYING WITH
THE PROVISIONS OF THIS SECTION.
9.4
REASONABLE EFFORTS; NOTIFICATION.
(A)
REASONABLE EFFORTS. UPON THE TERMS AND SUBJECT TO
THE CONDITIONS SET FORTH IN THIS AGREEMENT, EXCEPT TO THE EXTENT OTHERWISE
PROVIDED IN THIS SECTION 9.4, EACH OF THE PARTIES AGREES TO USE COMMERCIALLY
REASONABLE EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS, AND TO DO, OR
CAUSE TO BE DONE, AND TO ASSIST AND COOPERATE WITH THE OTHER PARTIES IN DOING,
ALL THINGS NECESSARY, PROPER OR ADVISABLE TO CONSUMMATE AND MAKE EFFECTIVE, IN
THE MOST EXPEDITIOUS MANNER PRACTICABLE, THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, INCLUDING (I) THE OBTAINING OF ALL NECESSARY ACTIONS OR NONACTIONS,
WAIVERS, CONSENTS AND APPROVALS FROM GOVERNMENTAL AUTHORITIES AND THE MAKING OF
ALL NECESSARY REGISTRATIONS AND FILINGS (INCLUDING FILINGS WITH GOVERNMENTAL
AUTHORITIES, IF ANY) AND THE TAKING OF ALL REASONABLE STEPS AS MAY BE NECESSARY
TO OBTAIN AN APPROVAL OR WAIVER FROM, OR TO AVOID AN ACTION OR PROCEEDING BY,
ANY GOVERNMENTAL AUTHORITIES, (II) THE OBTAINING OF ALL NECESSARY CONSENTS,
APPROVALS OR WAIVERS FROM THIRD PARTIES, (III) THE DEFENDING OF ANY LAWSUITS OR
OTHER LEGAL PROCEEDINGS, WHETHER JUDICIAL OR ADMINISTRATIVE, CHALLENGING THIS
AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING
SEEKING TO HAVE ANY STAY OR TEMPORARY RESTRAINING ORDER ENTERED BY ANY COURT OR
OTHER GOVERNMENTAL AUTHORITIES VACATED OR REVERSED,