BUSINESS, IN EACH CASE PREPARED IN
ACCORDANCE WITH GAAP (COLLECTIVELY, THE "UNAUDITED GAAP FINANCIALS"):
(1)
UNAUDITED BALANCE SHEETS, INCOME STATEMENTS
AND STATEMENTS OF CASH FLOWS FOR THE BUSINESS AS OF AND FOR THE FISCAL YEARS
ENDING DECEMBER 31, 2006, 2005 AND 2004; AND
(2)
unaudited quarterly balance sheets, income
statements and statements of cash flows for the Business as of and for the
quarterly periods ended March 31, 2007 and June 30, 2007 and ending September
30, 2007 (it being acknowledged that such interim financials for the quarter
ending September 30, 2007 cannot be prepared until the financial results through
September 30, 2007 are available).
FROM AND AFTER THE CLOSING DATE, SELLERS SHALL CONTINUE TO USE COMMERCIALLY
REASONABLE EFFORTS TO ASSIST BUYER AND THE MDL GROUP COMPANIES IN THE
PREPARATION OF THE UNAUDITED GAAP FINANCIALS, PROVIDED THAT SELLERS ARE AFFORDED
SUCH ACCESS TO THE BOOKS, RECORDS, PERSONNEL AND PROFESSIONAL ADVISORS OF THE
MDL GROUP COMPANIES AS MAY BE REASONABLY NECESSARY TO ENABLE IT TO PROVIDE SUCH
ASSISTANCE.
IN CONNECTION WITH SUCH POST-CLOSING ASSISTANCE, SELLERS SHALL
ALLOW BUYER AND ITS AUDITORS DIRECT ACCESS (I) TO THE BOOKS, RECORDS AND
RELEVANT PERSONNEL OF SELLERS TO THE EXTENT NECESSARY TO ASSIST IN THE
PREPARATION OF THE UNAUDITED GAAP FINANCIALS AND (II) TO SELLERS' INDEPENDENT
ACCOUNTANTS TO PROVIDE REASONABLE ASSISTANCE AND TO COORDINATE WITH SUCH
ACCOUNTANTS THE EFFORTS OF BUYER'S OWN AUDITORS.
EACH PARTY SHALL BE
RESPONSIBLE FOR THE FEES AND EXPENSES INCURRED BY IT BEFORE AND AFTER THE
CLOSING IN CONNECTION WITH THE ACTIVITIES CONTEMPLATED BY THIS SECTION 4.13(B)
(INCLUDING THE FEES AND EXPENSES OF INDEPENDENT ACCOUNTANTS, AUDITORS AND OTHER
PROFESSIONAL ADVISORS), PROVIDED THAT BUYER SHALL BE RESPONSIBLE FOR THE
EXPENSES OF
ANY AUDIT CONDUCTED BY BUYER WITH RESPECT TO THE UNAUDITED GAAP
FINANCIALS AFTER THE CLOSING.
(C)
BUYER ACKNOWLEDGES AND AGREES (I) THAT
NEITHER THE PREPARATION OF THE UNAUDITED GAAP FINANCIALS, NOR THE ABILITY TO
PREPARE OR AUDIT SUCH UNAUDITED GAAP FINANCIALS, SHALL BE A CONDITION TO BUYER'S
OBLIGATION TO CONSUMMATE THE CLOSING AND (II) THAT APART FROM THE OBLIGATION TO
USE COMMERCIALLY REASONABLE EFFORTS AS SET FORTH IN SECTION 4.13(B) ABOVE (BUT
WITHOUT LIMITING ANY REPRESENTATION OR WARRANTY CONTAINED IN SECTION 2.5 WITH
RESPECT TO THE FINANCIAL STATEMENTS AS PREPARED IN ACCORDANCE WITH THE SELLER
ACCOUNTING PRINCIPLES), SELLERS SHALL HAVE NO LIABILITY OR OBLIGATION TO BUYER
OR ANY OTHER PERSON WITH RESPECT TO THE UNAUDITED GAAP FINANCIALS.
BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT, FOR ALL PURPOSES UNDER THIS AGREEMENT, A
MATERIAL BREACH OF SELLERS' OBLIGATION TO USE COMMERCIALLY REASONABLE EFFORTS
UNDER SECTION 4.13(B) ABOVE SHALL BE DEEMED TO EXIST ONLY IF (I) SELLERS FAIL TO
DEVOTE THE INTERNAL RESOURCES REASONABLY NECESSARY TO COMMENCE AND PURSUE THE
PREPARATION OF SUCH UNAUDITED GAAP FINANCIALS, (II) SELLERS FAIL TO ENGAGE
PROFESSIONAL ADVISORS REASONABLY NECESSARY TO ASSIST IN THE PREPARATION OF THEN
UNAUDITED GAAP FINANCIALS OR, IF RETAINED, SUCH PROFESSIONAL ADVISORS FAIL TO
COMMENCE THEIR WORK IN A TIMELY MANNER OR (III) SELLERS FAIL OR REFUSE TO
PROVIDE BUYER AND ITS AUDITORS WITH ACCESS TO