BUYER IN BUYER'S PREPARATION OF THE PRO FORMA FINANCIAL INFORMATION RELATING TO
THE ACQUISITION OF THE BUSINESS AND RELATED MANUFACTURING OPERATION AT THE
EXISTING FACILITY REQUIRED PURSUANT TO ITEM 9.01 OF THE CURRENT REPORT ON FORM
8-K (OR ANY SUCCESSOR FORM) AS CONTEMPLATED BY THE EXCHANGE ACT AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER (THE "PRO FORMA
(15)
In the event the Buyer determines in its reasonable discretion that
the acquisition of the Business will not constitute a transaction that requires
audited financial statements, this covenant will be removed.
To the extent the
reporting requirements change for transactions such as those contemplated by
this Agreement, this covenant will be modified to address such changes.
38
INFORMATION," AND TOGETHER WITH THE HISTORICAL FINANCIAL INFORMATION, THE
"REQUIRED INFORMATION"), INCLUDING WITHOUT LIMITATION PROVIDING SUCH FINANCIAL
AND OTHER INFORMATION, RECORDS AND DOCUMENTS RELATING TO THE BUSINESS AND
RELATED MANUFACTURING OPERATION AT THE EXISTING FACILITY AS MAY BE NECESSARY TO
PREPARE SUCH PRO FORMA INFORMATION, PROVIDING ACCESS TO SUCH OF THE SELLER
ENTITIES' PERSONNEL, ADVISORS AND ACCOUNTANTS AS MAY BE NECESSARY TO PREPARE
SUCH PRO FORMA INFORMATION, AND GENERALLY COOPERATING WITH BUYER'S REASONABLE
REQUESTS IN ORDER TO FACILITATE SUCH PREPARATION.
(C)
THE PARTIES FURTHER ACKNOWLEDGE THAT THE FOREGOING FINANCIAL
INFORMATION MUST BE FILED BY BUYER WITH THE SEC UNDER COVER OF AN AMENDMENT TO A
CURRENT REPORT ON FORM 8-K (OR ANY SUCCESSOR FORM) NOT LESS THAN SEVENTY ONE
(71) CALENDAR DAYS AFTER THE INITIAL FILING OF SUCH CURRENT REPORT ON FORM 8-K
(OR ANY SUCCESSOR FORM), WHICH INITIAL FILING MUST BE FILED BY BUYER WITH THE
SEC NOT LESS THAN FOUR (4) DAYS (AS CALCULATED UNDER THE SEC'S RULES AND
REGULATIONS) AFTER THE CLOSING DATE. ACCORDINGLY, TIME IS OF THE ESSENCE WITH
RESPECT TO THE OBSERVANCE OF THIS COVENANT. THE PARTIES ALSO ACKNOWLEDGE THAT
ANY BUYER FILINGS UNDER THE SECURITIES ACT THAT REQUIRE THE REQUIRED INFORMATION
ALSO NECESSITATE TIMELY COOPERATION, INCLUDING COOPERATION IN THE PERFORMANCE OF
INCREMENTAL AUDIT PROCEDURES NECESSARY UNDER THE SECURITIES ACT AND THE DELIVERY
OF A MANUALLY SIGNED CONSENT OF THE AUDIT ACCOUNTANTS, BY THE SELLER ENTITIES,
IF REQUIRED, TO FACILITATE THE EXECUTION AND FILING OF AN ACCOUNTANT'S CONSENT.
THE SELLER ENTITIES COVENANT AND AGREE TO PROMPTLY COOPERATE FROM AND AFTER THE
CLOSING DATE TO FACILITATE SUCH ACTIONS AND WILL USE COMMERCIALLY REASONABLE
EFFORTS TO CAUSE THE AUDIT ACCOUNTANTS TO PERFORM SUCH PROCEDURES AND DELIVER
ANY SUCH CONSENT FROM TIME TO TIME AS REQUESTED BY BUYER.
(D)
AS SOON AS REASONABLY PRACTICABLE, BUT IN ANY EVENT WITHIN THE
EARLIEST TO OCCUR OF (I) THIRTY (30) DAYS PRIOR TO THE DATE THAT PAYMENT IS TO
BE MADE UNDER SECTION 2.1(A) AND (II) SIXTY (60) DAYS OF THE DATE HEREOF,(16)
THE SELLER ENTITIES SHALL, AND SHALL CAUSE THE AUDIT ACCOUNTANTS TO, PREPARE AND
DELIVER TO BUYER AUDITED FINANCIAL STATEMENTS (INCLUDING AN AUDIT OPINION
THEREON OF SUCH AUDIT ACCOUNTANTS) NECESSARY FOR DETERMINATION OF THE PURCHASE
PRICE PURSUANT TO SECTION 2.1 (THE "PURCHASE PRICE FINANCIAL STATEMENTS"). THE
SELLER ENTITIES SHALL ENGAGE THE AUDIT