ACCOUNTANTS AS TO THE AMOUNT OF AVAILABLE CASH FLOW FOR SUCH CALENDAR YEAR AND
(Y) FORTY-FIVE (45) DAYS FOLLOWING THE END OF EACH CALENDAR QUARTER AND CALENDAR
YEAR DURING THE ADDITIONAL ESCROW DEPOSIT PERIOD, PARENT SHALL CAUSE THE
SURVIVING CORPORATION TO DELIVER TO THE STOCKHOLDER AN UNAUDITED BALANCE SHEET,
STATEMENT OF INCOME AND STATEMENT OF CASH FLOW OF THE SURVIVING CORPORATION AS
OF AND FOR SUCH CALENDAR YEAR CERTIFIED BY THE CHIEF FINANCIAL OFFICER OF
PARENT.
THE SURVIVING CORPORATION SHALL DEPOSIT (AND PARENT SHALL DEPOSIT IF
THE COMPANY FAILS TO DEPOSIT) IN THE ESCROW ACCOUNT THE AMOUNT OF ANY
UNDERPAYMENT IN ESCROW DEPOSITS REVEALED BY SUCH ACCOUNTANT'S CERTIFICATION
WITHIN FIVE (5) DAYS FOLLOWING THE DELIVERY TO THE STOCKHOLDER OF SUCH
ACCOUNTANT'S CERTIFICATION (EACH AN "ANNUAL CATCH-UP ESCROW DEPOSIT").
PARENT
SHALL GIVE THE STOCKHOLDER AND ITS EMPLOYEES, ACCOUNTANTS, LEGAL COUNSEL AND
OTHER ADVISORS REASONABLE ACCESS UPON REASONABLE NOTICE DURING NORMAL BUSINESS
HOURS, TO ALL OFFICERS, EMPLOYEES, OFFICES, PROPERTIES, AGREEMENTS, BOOKS,
RECORDS AND AFFAIRS OF THE SURVIVING CORPORATION AND SHALL OTHERWISE CAUSE ITS
EMPLOYEES TO PROVIDE SUCH DOCUMENTATION, CERTIFICATES AND THE LIKE AS THE
STOCKHOLDER OR ITS EMPLOYEES, ACCOUNTANTS, LEGAL COUNSEL AND OTHER ADVISORS MAY
REASONABLY REQUEST SO THAT THE STOCKHOLDER CAN REVIEW AND APPROVE THE
CALCULATION OF EACH ADDITIONAL ESCROW DEPOSIT.
(D)
FOR A PERIOD OF FIVE (5) YEARS FOLLOWING THE CLOSING DATE, PARENT
SHALL NOT (AND SHALL NOT PERMIT THE SURVIVING CORPORATION TO) ENTER INTO, ENGAGE
IN OR CONSUMMATE A SALE OF THE COMPANY, PROVIDED THAT PARENT MAY CONSUMMATE THE
PERMITTED AFFILIATE SALE.
PARENT ACKNOWLEDGES AND CONFIRMS THAT IF AT ANY TIME
IT CONSUMMATES A SALE OF THE COMPANY FOLLOWING SUCH FIVE (5) YEAR PERIOD OR
CONSUMMATES THE PERMITTED AFFILIATE SALE, THEN CONCURRENTLY WITH, AND AS A
CONDITION TO THE CONSUMMATION OF SUCH SALE OF THE COMPANY OR
7
PERMITTED AFFILIATE SALE, THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN
SATISFIED IN FULL (PROVIDED THAT NO SUCH SALE SHALL RELIEVE PARENT OF ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT):
(I) THE
PURCHASER THEREUNDER SHALL EXECUTE AND DELIVER TO THE STOCKHOLDER AND PARENT A
JOINDER AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT C,
WHEREBY SUCH PURCHASER SHALL EXPRESSLY AGREE TO BE BOUND BY THIS AGREEMENT AND
TO ASSUME ALL OBLIGATIONS OF PARENT UNDER THIS AGREEMENT AND EACH OTHER
TRANSACTION DOCUMENT, AS IF SUCH PURCHASER WERE PARENT HEREUNDER AND THEREUNDER,
INCLUDING, WITHOUT LIMITATION, UNDER THIS SECTION 3.4, SECTION 8 (ADDITIONAL
COVENANTS AND UNDERTAKINGS), INCLUDING, WITHOUT LIMITATION, THE UNDERTAKINGS,
COVENANTS AND AGREEMENTS SET FORTH IN (X) SECTION 8.11, INCLUDING, WITHOUT
LIMITATION, SCHEDULE 8.11(A) AND EXHIBIT B AND (Y) SECTION 8.12 INCLUDING,
WITHOUT LIMITATION, THE AGREEMENT NOT TO CONDUCT INVASIVE ENVIRONMENTAL TESTING,
AND SECTION 9 HERETO; AND (II) PARENT SHALL, OR SHALL CAUSE THE SURVIVING
CORPORATION TO, DEPOSIT IN THE ESCROW ACCOUNT PRIOR TO THE CONSUMMATION OF SUCH
SALE OF THE COMPANY SUFFICIENT FUNDS TO ENSURE THAT THE ESCROW ACCOUNT HAS THE
AMOUNT OF FUNDS IT WOULD HAVE HAD IF (A) PARENT HAD TIMELY DEPOSITED INTO THE