of the Seller
Entities (which consent will not be unreasonably withheld), the Seller Entities
employees, distributors, suppliers, accountants and advisors.
37
5.4
Financial Statements.(15)
(A)
AS SOON AS REASONABLY PRACTICABLE, BUT IN ANY PRIOR TO
, 200
, THE SELLER ENTITIES SHALL PREPARE AND DELIVER, OR CAUSE TO BE
PREPARED AND DELIVERED, TO BUYER THE HISTORICAL FINANCIAL INFORMATION (INCLUDING
AUDITED AND, IF APPLICABLE, UNAUDITED FINANCIAL INFORMATION), INCLUDING A
MANUALLY SIGNED ACCOUNTANTS' REPORT FROM BDO SEIDMAN LLP OR SUCH OTHER
INDEPENDENT AUDITING FIRM AS MAY BE AGREED BETWEEN THE PARTIES (THE "AUDIT
ACCOUNTANTS"), OF AND RELATING TO THE BUSINESS AND RELATED MANUFACTURING
OPERATION AT THE EXISTING FACILITY, WHICH BUYER REASONABLY DETERMINES IS
REQUIRED TO BE AUDITED AND FILED BY BUYER WITH THE SEC PURSUANT TO ITEM 9.01 OF
THE CURRENT REPORT ON FORM 8-K (OR ANY SUCCESSOR FORM) AS CONTEMPLATED BY THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT") AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER AS SUCH REQUIRED FINANCIAL INFORMATION IS
MODIFIED BY ANY RELIEF GRANTED TO BUYER BY THE SEC WITH RESPECT TO THE SCOPE OF
FINANCIAL INFORMATION REQUIRED TO BE FILED TOGETHER WITH AN AUDIT OPINION
THEREON FROM THE AUDIT ACCOUNTANTS (AS DEFINED HEREIN) IN THE FORM REQUIRED BY
THE SEC AND APPLICABLE STOCK EXCHANGE (THE "HISTORICAL FINANCIAL INFORMATION").
THE SELLER ENTITIES COVENANT THAT THE HISTORICAL FINANCIAL INFORMATION WILL BE
PREPARED IN ACCORDANCE WITH GAAP AS OF THE DATES AND FOR THE PERIODS INDICATED.
THE SELLER ENTITIES WILL ALSO COOPERATE IN ALL REASONABLE RESPECTS WITH THE
AUDIT ACCOUNTANTS IN CONNECTION WITH THIS AUDIT OF THE HISTORICAL FINANCIAL
INFORMATION. TO THE EXTENT THAT THE AUDIT ACCOUNTANTS ARE NO LONGER REGISTERED
AND IN GOOD STANDING WITH THE PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD, ARE NOT
PERMITTED BY APPLICABLE LAW TO RENDER AN AUDIT OPINION IN CONNECTION WITH A
FILING BY THE COMPANY UNDER THE EXCHANGE ACT, OR OTHERWISE CANNOT OR WILL NOT
COMPLETE THE AUDIT FOR REASONS SEPARATE AND APART FROM THE SELLER ENTITIES AND
THE AUDIT PROCESS CONTEMPLATED HEREBY, THE SELLER ENTITIES SHALL NOT BE LIABLE
FOR ANY FAILURE TO SATISFY THIS COVENANT SOLELY DUE TO THE FAILURE OF THE AUDIT
ACCOUNTANTS TO REMAIN SO REGISTERED OR SO PERMITTED, BUT INSTEAD SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH BUYER TO FIND ALTERNATE MEANS
TO SATISFY DELIVERY OF THE HISTORICAL FINANCIAL INFORMATION AS SOON AS
REASONABLY PRACTICABLE. TO THE EXTENT THAT ANY GOVERNMENTAL AUTHORITY (INCLUDING
THE SEC) OR STOCK EXCHANGE REQUIRES ANY ADDITIONAL FINANCIAL STATEMENTS OR
FINANCIAL INFORMATION OR STATEMENTS COVERING MORE THAN JUST THE BUSINESS,
INCLUDING BUT NOT LIMITED TO THE EXISTING FACILITY AND WHETHER HISTORICAL OR PRO
FORMA IN NATURE, THE SELLER ENTITIES SHALL USE COMMERCIALLY REASONABLE EFFORTS
TO ASSIST BUYER AT BUYER'S SOLE EXPENSE WITH PREPARATION AND PRESENTATION OF
SUCH INFORMATION AS IS REQUIRED AND SHALL PROVIDE SUCH ACCESS TO FINANCIAL
INFORMATION AND PERSONNEL AND COOPERATE WITH ANY INDEPENDENT PUBLIC ACCOUNTING
FIRM AS IS NECESSARY TO ASSIST BUYER IN FULFILLING SUCH REQUIREMENTS.
(B)
THE SELLER ENTITIES WILL COOPERATE IN ALL REASONABLE RESPECTS WITH