Additional Financial Statements. Between the date hereof and the Closing Date, Sellers shall (and Members shall take all applicable steps to cause Sellers to) provide Parent: (a) within fifteen (15) Business Days after the end of each calendar month, an internally prepared balance sheet as of the end of such month and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then ended; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after the end of each calendar quarter, a reviewed balance sheet as of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements of changes in members’ equity for each Seller as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 and (if the Closing is after November 15, 2016) September 30, 2016 (collectively with the financial statements in clauses (a) and (b), the “Additional Reviewed Statements”). The Additional Reviewed Statements shall: (i) be true, correct and complete in all material respects; (ii) be derived from and prepared in accordance with the information contained in the Books and Records; (iii) be prepared in accordance with GAAP, consistently applied, throughout the periods covered thereby; and (iv) present accurately and fairly in all material respects the consolidated financial condition, results of operations and cash flows of Seller I, Seller II and Citgen as of the times and for the periods referred to therein, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of which will not, individually or in the aggregate, be material). The Additional Reviewed Statements shall be accompanied by an unqualified certification of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to the effect that the Additional Reviewed Statements conform to the requirements of the immediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” for purposes of this Agreement. There shall be no changes in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation of the Additional Reviewed Statements as compared with the Audited Financial Statements.
Appears in 1 contract
Additional Financial Statements. Between the date hereof and the Closing Date, Sellers shall (and Members shall take all applicable steps to cause Sellers to) provide Parent: (a) within fifteen The Company shall prepare and deliver, and the Sellers shall use all reasonable efforts to cause the Company to prepare and deliver, to Micron, as soon as reasonably practicable and in no event later than April 15, 2010, the audited consolidated balance sheet of the Company as of December 31, 2009, and the related audited consolidated statements of operations, cash flows and shareholders’ equity for the fiscal year ended December 31, 2009 (15including the related notes and independent auditors reports thereon) Business Days after (the “2009 Annual Financial Statements”).
(b) The Company shall prepare and deliver, and the Sellers shall use all reasonable efforts to cause the Company to prepare and deliver, to Micron, (i) as soon as reasonably practicable and in no event later than forty-five (45) days following the end of each calendar monthof the first, an internally prepared second and third fiscal quarters of the Company following the date of this Agreement, the unaudited consolidated balance sheet of the Company as of the end of such month fiscal quarter, and the related internally prepared unaudited consolidated statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly quarterly period then ended; (bincluding the related notes) except as otherwise required under clause (cthe “2010 Quarterly Financial Statements”), provided, however, that if the Closing occurs on a date which is less than forty-five (45) belowdays following the end of any fiscal quarter of the Company, the Company shall have no obligation to deliver to Micron prior to the Closing any 2010 Quarterly Financial Statements for such quarterly period that have not been completed prior to the Closing, but shall use all reasonable efforts until the Closing to proceed with the preparation of such 2010 Quarterly Financial Statements with a view to enabling the Company to finalize such 2010 Quarterly Financial Statements within thirty forty-five (3045) Business Days days after the end of each calendar quartersuch quarterly period in accordance with this Section 7.28, a reviewed and (ii) as soon as reasonably practicable and in no event later than April 15, 2010, the unaudited consolidated balance sheet of the Company as of the end of such each fiscal quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related reviewed unaudited consolidated statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (including the related notes) (the “Prior Quarterly Financial Statements” and, together with the 2010 Quarterly Financial Statements, the “Quarterly Financial Statements”), provided, however, that if the Closing occurs prior to April 15, 2010, the Company shall have no obligation to deliver to Micron prior to the Closing any Prior Quarterly Financial Statements that have not been completed prior to the Closing, but shall use all reasonable efforts until the Closing to proceed with the preparation of such Prior Quarterly Financial Statements with a view to enabling the Company to finalize such Prior Quarterly Financial Statements by April 15, 2010 in accordance with this Section 7.28.
(c) If the Closing has not occurred by August 16, 2▇▇▇, ▇▇▇▇▇▇, ▇▇ and Intel agree to consult with one another from time to time during the remainder of Micron’s 2010 fiscal year and shall jointly determine in good faith whether it is reasonably likely that the conditions to Closing (other than the conditions in Section 9.2(t)(iii)) would be satisfied during the period 4917039.19 from the date Micron expects to file its Annual Report on or before Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 731, 2016 (but 2010. If Micron, ST and Intel determine in all events at least good faith that it is reasonably likely that such conditions to Closing would be satisfied in such period, and if based on the financial information available to it during the five (5) Business Days before Closing), reviewed comparative balance sheets, statements Day period following the end of income, statements of cash flows and statements of changes its 2010 fiscal year Micron determines in members’ equity for each Seller as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 and (good faith that if the Closing were to occur in such period it is after November 15reasonably likely that, 2016) September 30absent the Waiver (defined below), 2016 (collectively Micron would be required to file with any form, report, registration statement, proxy statement or related document required to be filed by Micron with the financial SEC, any balance sheets or statements of operations, cash flows or shareholders’ equity of the business comprised of the Intel Business and the ST Business (as such terms are defined in clauses the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (a) and (b), the “Additional Reviewed Pre-Formation Financial Statements”), then promptly after such fifth (5th) Business Day Micron agrees to contact the SEC to determine whether and on what terms the SEC would be willing to grant a waiver (the “Waiver”) that would relieve Micron from any obligation to file with any form, report, registration statement, proxy statement or related document required to be filed by Micron with the SEC, any such Pre-Formation Financial Statements. If the SEC indicates that it is reasonably likely to grant a Waiver on terms that are reasonably acceptable to Micron, ST and Intel, then Micron shall use all reasonable efforts to obtain the Waiver from the SEC. The Additional Reviewed Statements Company, ST and Intel shall: , and each shall use all reasonable efforts to cause its independent accountants to, provide to Micron all cooperation reasonably requested by Micron in connection with seeking to obtain the Waiver, including using all reasonable efforts to furnish to Micron and its independent accountants with all then currently existing and reasonably available financial information of the Intel Business (in the case of Intel) and the ST Business (in the case of ST) for any period ending on or prior to the Formation Closing Date. In addition, if the SEC grants the Waiver, the Company, Micron and the Sellers shall use all reasonable efforts to comply with the terms and conditions of the Waiver. Notwithstanding the foregoing, if, at any time following an initial determination as to whether to seek the Waiver or following the granting of the Waiver, there has been a change in circumstances relating to the expected timing of the satisfaction of the conditions to Closing or with respect to Micron’s financial results for the 2010 fiscal year, Micron, ST and Intel will jointly re-consider in good faith whether obtaining the Waiver or proceeding under the Waiver would allow the Closing to occur earlier than December 31, 2010 and shall accordingly (A) if the Waiver has not yet been obtained, seek or withdraw such Waiver request, as applicable, and (B) if the Waiver has been obtained, and Micron, ST and Intel jointly determine that proceeding under the Waiver would not allow the Closing to occur earlier than December 31, 2010, suspend all efforts to comply with the terms and conditions thereof, unless the Waiver would prohibit such suspension. Nothing in this Agreement shall be construed to require Micron to delay the filing with the SEC of Micron’s Annual Report on Form 10-K for the fiscal year ended August 31, 2010 beyond the date on which Micron would otherwise be prepared to make such filing. Nothing in this Section 7.28, shall require the Company, ST or Intel shall be required to (i) be truecreate, correct and complete in all material respectsprepare or locate any financial information for any period ending on or prior to the Formation Closing Date that does not currently exist or that is not reasonably available; (ii) be derived from make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and prepared in accordance with regulations of the information contained in the Books and RecordsSEC of any such financial 4917039.19 information; or (iii) incur any liability with respect to any such financial information in connection with seeking the Waiver.
(d) If the Closing has not occurred before December 31, 2010, the Company shall have no obligation to deliver to Micron prior to the Closing the financial statements at or for the year ended December 31, 2010 that have not been completed prior to the Closing, but shall use all reasonable efforts until the Closing to proceed with the preparation of a consolidated balance sheet of the Company as of December 31, 2010 and the related audited consolidated statements of operations, cash flows and shareholders’ equity for the fiscal year ended December 31, 2010 with a view to enabling the Company to finalize such financial statements by March 15, 2011.
(e) The Company shall cause, and the Sellers shall use all reasonable efforts to cause the Company to cause, each of the 2009 Annual Financial Statements and Quarterly Financial Statements that are required to be delivered pursuant to this Section 7.28, (i) to be prepared from the books and records of the Company and its Subsidiaries, (ii) to be prepared in accordance with GAAP, consistently applied, throughout GAAP applied on a consistent basis during the periods covered thereby; involved, and (iviii) present accurately and to fairly present, in all material respects respects, the consolidated financial condition, position and results of operations and operations, cash flows and shareholders’ equity (subject, in the case of Seller Ithe Quarterly Financial Statements, Seller II to the absence of a statement of shareholders’ equity) of the Company and Citgen its Subsidiaries on a consolidated basis, as of the times and for the periods referred to therein.
(f) The Company shall cause, subject and the Sellers shall use all reasonable efforts to cause the Company to cause, (Ai) the absence of footnote disclosures and other presentation itemsQuarterly Financial Statements required to be delivered hereunder to have been reviewed by the Company’s independent auditors (which shall be in accordance with Statement on Auditing Standards No. 100), and (Bii) changes resulting from normal year-end adjustments (the effect of which will not, individually or in the aggregate, be material). The Additional Reviewed 2009 Annual Financial Statements shall to be accompanied by an unqualified certification independent auditors report the form of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to which conforms with the effect that the Additional Reviewed Statements conform to the applicable requirements of the immediately preceding sentence. Upon delivery to ParentPublic Company Accounting Oversight Board (which need not include, for the avoidance of doubt, a report or audit of internal control over financial reporting), and (iii) each of the Quarterly Financial Statements and the 2009 Annual Financial Statements (collectively, the Additional Reviewed Statements shall be considered “Reviewed Required Financial Statements” ”) to be prepared with such disclosures required by the applicable provisions of Regulation S-X of the SEC. The parties acknowledge and agree that for purposes of clauses (i), (ii) and (iii) of this Section 7.28(f), the applicable rules and regulations of the SEC, the applicable requirements of the Public Company Accounting Oversight Board and the applicable provisions of Regulations S-X of the SEC shall be deemed to refer to those requirements (the “Applicable Financial Statement Requirements”) applicable to the financial statements and pro forma financial information of the Company and related disclosures required to be provided in connection with the transactions contemplated by this Agreement. There shall be no changes in , it being understood that the method of application of Sellers’ and Citgen’s accounting policies Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation Section 15(d) of the Additional Reviewed Statements as compared Exchange Act. The Company shall, and the Sellers shall use all reasonable efforts to cause the Company to, use all reasonable efforts to provide financial statements and supporting documentation that will permit the Company’s independent auditors to issue an unqualified report on the 2009 Annual Financial Statements. 4917039.19
(g) Notwithstanding the foregoing, the Company and the Sellers shall have no Liability under Section 7.28(e) or Section 7.28(f) with respect to any Quarterly Financial Statement which is not included in any form, report, registration statement, proxy statement or related document required to be filed by Micron with the Audited SEC, except to the extent that any information included in or derived from any such Quarterly Financial StatementsStatement is required to be included in any form, report, registration statement, proxy statement or related document required to be filed by Micron with the SEC.
Appears in 1 contract
Additional Financial Statements. Between The Company shall use its reasonable best efforts during the period between the date hereof of this Agreement and the Closing Date, Sellers shall (and Members shall take all applicable steps Date to cause Sellers tothe Company’s auditors to complete (a) provide the audited balance sheet of the Company as of December 31, 2016; (b) the audited statement of operations, change in shareholders’ equity and cash flows of the Company for the twelve (12) months ended December 31, 2016; and (c) the reviewed statement of operations of the Company for the six (6) month period ending on December 31, 2016, and, if the Closing does not occur prior to March 31, 2017 other than due to a breach of this Agreement by Parent or any other failure or delay caused by Parent, the reviewed balance sheet of the Company and the reviewed statement of operations, change in shareholders’ equity and cash flows of the Company for any fiscal quarters completed during the period beginning on January 1, 2017 and ending as of the Closing Date (the “Additional Financial Statements”). In connection with the foregoing, the Company shall use its reasonable best efforts to ensure that the Additional Financial Statements shall: (a) within fifteen (15) Business Days after be derived from and consistent with the end of each calendar month, an internally prepared balance sheet as books and records of the end of such month and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then endedCompany; (b) except comply as otherwise required under clause to form in all material respects with applicable accounting requirements with respect thereto as of their respective dates; (c) below, within thirty be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other; (30d) Business Days after fairly present the end of each calendar quarter, a reviewed balance sheet as financial condition of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events Company at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements of changes in members’ equity for each Seller as of the dates therein indicated and for the quarterly periods ended on March 31therein specified (subject, 2016in the case of unaudited interim period financial statements, June 30to normal recurring year-end audit adjustments, 2016 and none of which individually or in the aggregate will be material in amount); (if the Closing is after November 15, 2016) September 30, 2016 (collectively with the financial statements in clauses (a) and (b), the “Additional Reviewed Statements”). The Additional Reviewed Statements shall: (ie) be true, correct and complete in all material respects; (ii) be derived from and prepared in accordance with the information contained in the Books and Records; (iii) be prepared in accordance with GAAP, consistently applied, throughout the periods covered therebycomplete; and (ivf) present accurately and fairly in all material respects the consolidated shall be audited (for any financial condition, results of operations and cash flows of Seller I, Seller II and Citgen statements as of the times and or for the periods referred 12 months ended December 31) or be reviewed (for any financial statements not as of or for the 12 months ended December 31) by an auditor or firm of accountants qualified to therein, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of which will not, individually or act as auditors in the aggregate, United States and any auditors’ report(s) required to be material). The Additional Reviewed Statements annexed thereto shall be accompanied by an unqualified certification unqualified. Notwithstanding the preceding sentence or any other provision of each Seller’s and Citgen’s chief financial officer (this Agreement to contrary, the Company makes no representation or similar executive officer) warranty with respect to the effect that the Additional Reviewed Statements conform to the requirements of the immediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” for purposes of this Agreement. There shall be ; provided, however, that no changes information or knowledge obtained in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in connection with the preparation of the Additional Reviewed Financial Statements as compared or otherwise shall affect or be deemed to modify, amend or supplement any representation or warranty set forth herein or in the Schedules or the conditions to the obligations of the parties to consummate the Merger in accordance with the Audited Financial Statementsterms and provisions hereof, or restrict, impair or otherwise affect any Parent Indemnified Parties’ right to indemnification hereunder or otherwise prevent or cure any misrepresentations, breach of warranty or breach of covenant.
Appears in 1 contract
Additional Financial Statements. Between Seller shall provide to Buyer, (A) audited consolidated financial statements, including the consolidated balance sheets and related consolidated statements of income, cash flows and (either as a separate statement or in a footnote) equity (or net investment or similarly comparable statement) (together with notes thereto) of the Business Group as of and for the years ended December 31, 2015 and December 31, 2016 (collectively, the “Additional Audited Financial Statements”), which Seller shall use best efforts to provide to Buyer as soon as practicable after the date hereof (but which shall be provided no later than June 1, 2017), (B) unaudited consolidated financial statements, including the consolidated balance sheet and related consolidated statements of income, cash flows and (either as a separate statement or in a footnote) equity (or net investment or similarly comparable statement) (together with notes thereto) of the Closing DateBusiness Group as of the end of and for the first quarterly period ended after the most recent fiscal year covered by the Additional Audited Financial Statements (and, Sellers in the case of this clause (B), as of the end of and for the corresponding period of the prior fiscal year), which shall have been reviewed by the independent accountants of Seller in accordance with AS 4105 (formerly SAS 100) (collectively, the “Additional Unaudited Financial Statements” and, together with the Additional Audited Financial Statements, the “Additional Financial Statements”), which Additional Unaudited Financial Statements shall be provided to Buyer as soon as practicable (but which shall be provided no later than June 1, 2017) and Members (C) unaudited consolidated monthly balance sheet and related consolidated statements of income of the Business Group as of and for each monthly period ended after December 31, 2016 and at least 15 days prior to the Closing, which shall take all applicable steps be provided to cause Sellers to) provide Parent: (a) within fifteen (15) Business Days Buyer no later than 15 days after the end of each calendar such month, in each case prepared on an internally prepared balance sheet as of the end of such month and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then ended; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after the end of each calendar quarter, a reviewed balance sheet as of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements of changes in members’ equity for each Seller as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 and (if the Closing is after November 15, 2016) September 30, 2016 (collectively with the financial statements in clauses (a) and (b), the “Additional Reviewed Statements”)as-managed basis. The Additional Reviewed Financial Statements shall: (i) be true, correct and complete in all material respects; (ii) be derived from and prepared in accordance with the information contained in the Books and Records; (iii) shall be prepared in accordance with GAAP, GAAP consistently applied, throughout applied for the periods covered thereby; and (iv) as of the dates indicated in such financial statements, and shall present accurately and fairly fairly, in all material respects respects, the consolidated financial condition, position and results of operations of the Business Group, for the period and cash flows of Seller I, Seller II and Citgen as of the times and for dates indicated therein (subject, in the periods referred case of the Additional Unaudited Financial Statements, to therein, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of adjustments, which will not, individually are not expected to be material in nature or in the aggregate, be materialamount). The Additional Reviewed Financial Statements shall not be accompanied by an unqualified certification of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to the effect that the Additional Reviewed Statements conform to the requirements of the immediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” used for purposes of any calculation of Working Capital pursuant to this Agreement. There shall be no changes in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation of the Additional Reviewed Statements as compared with the Audited Financial Statements.
Appears in 1 contract
Additional Financial Statements. Between (a) Seller shall, not later than the tenth Business Day of each calendar month from and after the date hereof and until the Closing Date, Sellers shall provide Buyer an unaudited statement showing (i) the sales by legal entity for the Business, and Members shall take all applicable steps any consolidated results (to cause Sellers tothe extent available) provide Parent: (a) within fifteen (15) Business Days after for the end of each preceding calendar month, an internally prepared balance sheet as and comparing such sales to the comparable figure for the same month of the end of such month prior year, and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then ended; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after the end of each calendar quarter, a reviewed balance sheet as of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements of changes in members’ equity for each Seller as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 and (if the Closing is after November 15, 2016) September 30, 2016 (collectively with the financial statements in clauses (a) and (b), the “Additional Reviewed Statements”). The Additional Reviewed Statements shall: (i) be true, correct and complete in all material respects; (ii) be derived from the operating results, after financial charges, by legal entity for the Business, and any consolidated results (to the extent available) for the preceding month, in each case prepared in accordance with Belgian GAAP for periods through December 31, 2004 and prepared in accordance with International Accounting Standards for periods beginning thereafter. Seller shall, not later than the information contained fifteenth Business Day after the end of any calendar quarter from and after the date hereof until the Closing Date, provide Buyer an unaudited statement of income of the Business for the preceding calendar quarter, in each case prepared in accordance with Belgian GAAP for periods through December 31, 2004 and prepared in accordance with International Accounting Standards for periods beginning thereafter.
(b) Seller shall, prior to the Books Closing Date, deliver to Buyer (i) audited combined balance sheets of the Business as of December 31, 2001, 2002 and Records; 2003, (ii) audited combined statements of income of the Business for the 2002 and 2003 fiscal years and (iii) to the extent required by the SEC, an unaudited combined interim balance sheet for the Business for the six (6) months ended June 30, 2003 (collectively, the "BELGIAN GAAP AUDITED FINANCIAL STATEMENTS"). Seller shall, prior to the Closing Date, deliver to Buyer an unaudited combined interim balance sheet for the Business as of June 30, 2004 and an unaudited interim statement of income for the period ended June 30, 2004. The financial statements described in this Section 5.14(b) shall be prepared in accordance with GAAPBelgian GAAP in accordance with Seller's policies and procedures set forth in the UCB Accounting Policy Manual, consistently applied, throughout and the periods covered thereby; consolidation thereof shall be performed in accordance with Schedule 2.6(a). Seller shall cause a firm of independent certified public accountants that is registered with the U.S. Public Company Accounting Oversight Board to audit the Belgian GAAP Audited Financial Statements. All costs and (iv) present accurately expenses incurred by Seller and fairly its Affiliates in all material respects connection with the consolidated financial condition, results preparation of operations and cash flows of Seller I, Seller II and Citgen as audit of the times and for the periods referred to therein, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of which will not, individually or in the aggregate, be material). The Additional Reviewed Belgian GAAP Audited Financial Statements shall be accompanied borne by an unqualified certification Seller and its Affiliates.
(c) Buyer shall, prior to the Closing Date, prepare, or cause to be prepared, (i) audited combined balance sheets of each Seller’s the Business as of December 31, 2001, 2002 and Citgen’s chief financial officer 2003, (or similar executive officerii) audited combined statements of income of the Business for the 2002 and 2003 fiscal years and (iii) to the effect that extent required by the Additional Reviewed Statements conform SEC, an unaudited combined interim balance sheet for the Business for the six (6) months ended June 30, 2003 (collectively, the "U.S. GAAP AUDITED FINANCIAL STATEMENTS" and, together with the Belgian GAAP Audited Financial Statements, the "AUDITED FINANCIAL STATEMENTS"). Buyer shall, prior to the requirements Closing Date, prepare, or caused to be prepared, an unaudited combined interim balance sheet for the Business as of June 30, 2004 and an unaudited interim statement of income for the period then ended. The financial statements described in this Section 5.14(c) shall be prepared in accordance with U.S. GAAP consistently applied. Buyer shall cause a firm of independent certified public accountants that is registered with the U.S. Public Company Accounting Oversight Board to audit the U.S. GAAP Audited Financial Statements. Without limiting the generality of Section 5.1, Seller shall, and shall cause its Affiliates to, cooperate with Buyer with respect to the preparation of the immediately preceding sentence. Upon delivery foregoing and provide to Parent, Buyer and to the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” firm of independent certified public accountants engaged by Buyer for purposes of auditing the U.S. GAAP Audited Financial Statements such data as is reasonably necessary for the preparation and audit of the financial statements described in this Agreement. There Section 5.14(c), and shall be no changes in execute and cause their respective officers, directors and employees to execute such customary representation letters as such firm of independent certified public accountants may reasonably request with respect to the method data and information underlying such financial statements, the conformity of application of Sellers’ such financial statements to U.S. GAAP and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates procedures used in the preparation of the Additional Reviewed Statements as compared such financial statements. Buyer shall, promptly upon receiving a written request from Seller, reimburse Seller for all of Seller's and its Affiliates' reasonable costs and expenses incurred in connection with the preparation of and audit of the U.S. GAAP Audited Financial Statements.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cytec Industries Inc/De/)
Additional Financial Statements. Between the date hereof and the Closing Date, Sellers shall (and Members shall take all applicable steps to cause Sellers to) provide Parent: (a) within fifteen Within sixty (1560) Business Days after days following the end date hereof, the Company shall, at Purchaser’s sole expense, provide to Purchaser an updated audit of each calendar month, an internally prepared the consolidated balance sheet sheets of the Company and the Company Subsidiaries as of June 30, 2023 and the end of such month related consolidated income statements, cash flow statements and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then ended; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after the end of each calendar quarter, a reviewed balance sheet as of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements statement of changes in members’ equity for each Seller as of and for the quarterly periods ended on March 31fiscal years then ended, 2016including the notes thereto, June 30, 2016 and with such audit prepared in accordance with US GAAS (if the Closing is after November 15, 2016) September 30, 2016 (collectively with the financial statements in clauses (a) and (b), the “Additional Reviewed Re-Audited Financial Statements”). The Additional Reviewed Re-Audited Financial Statements shall: (i) be true, correct and complete in all material respects; (ii) be derived from and prepared in accordance with the information contained in the Books and Records; (iii) shall be prepared in accordance with GAAPand based upon the books and records of the Company and the Company Subsidiaries.
(b) Within seventy-five (75) days following the date hereof, consistently appliedthe Company shall provide to Purchaser the unaudited balance sheet of the Company and the Company Subsidiaries as of December 31, throughout 2023, and the periods covered thereby; related income statement, cash flow statement and statement of changes in equity for the six (iv6) present accurately month period ended December 31, 2023, including the notes thereto, reviewed by PricewaterhouseCoopers in accordance with U.S. AICPA SAS 100 standards.
(c) Within sixty (60) days following the date hereof, the Company shall provide to Purchaser the profit and fairly in all material respects loss statement of the Company and the Company Subsidiaries as of March 31, 2024, for the three (3) month period ended March 31, 2024.
(d) If the Closing has not occurred on or prior to August 1, 2024, the Company shall engage PricewaterhouseCoopers, at Purchaser’s sole expense to conduct an audit of the consolidated financial conditionbalance sheet of the Company and the Company Subsidiaries as of June 30, results of operations 2023 and June 30, 2024, and the related consolidated income statements and cash flows of Seller I, Seller II and Citgen as flow statements for each of the times and for fiscal years then ended including the periods referred to thereinnotes thereto, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments with such audit prepared in accordance with US GAAS (the effect of which will not, individually or in the aggregate, be material“Additional Audited Financial Statements”). The Company shall use its commercially reasonable efforts to provide Purchaser with the Additional Reviewed Audited Financial Statements by the date reasonably requested by Purchaser but in any event no later than October 15, 2024. The Additional Audited Financial Statements shall be accompanied by an unqualified certification of each Seller’s prepared in accordance with and Citgen’s chief financial officer (or similar executive officer) to based upon the effect that the Additional Reviewed Statements conform to the requirements books and records of the immediately preceding sentence. Upon delivery to Parent, Company and the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” for purposes of this Agreement. There shall be no changes in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation of the Additional Reviewed Statements as compared with the Audited Financial StatementsCompany Subsidiaries.
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Additional Financial Statements. Between the date hereof and the Closing Date, Sellers shall (and Members shall take all applicable steps to cause Sellers to) provide Parent: (a) within fifteen As promptly as practicable following the execution of this Agreement (15using reasonable best efforts to comply by the date that is twenty-one (21) Business Days calendar days after the end date of each calendar monththis Agreement), an internally prepared balance sheet as Cosmo shall deliver to Salix true and complete copies of (i) selected financial data of the end of such month and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen Business for such monthly period then ended; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after the end of each calendar quarter, a reviewed balance sheet as of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended and (c) on or before December 7, 2016 (but in all events at least five (5) years ended December 31, 2013, as required by Form S-4 and Regulation S-X under the Securities Act, (ii) audited consolidated balance sheets of the Business Days before Closingas of December 31, 2011, December 31, 2012 and December 31, 2013, and the related audited statements of income and statements cash flows of the Business for the fiscal years ending on December 31, 2011, December 31, 2012 and December 31, 2013 (the “Additional Audited Financial Statements”), reviewed comparative (iii) the unaudited consolidated balance sheets, statements sheets of income, statements of cash flows and statements of changes in members’ equity for each Seller the Business as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 2013 and June 30, 2014 and the related unaudited statement of income and statement cash flows of the Business for the six month periods ending on June 30, 2013 and June 30, 2014 in each case including any notes thereto, and (if iv) such additional financial and related information as Salix shall request for preparation of pro forma financial information meeting the Closing requirements of Form S-4 and Article 11 of Regulation S-X under the Securities Act in connection with the Transactions. The Additional Audited Financial Statements shall have been audited by an independent accounting firm that is after November 15registered and in good standing with the Public Company Accounting Oversight Board. In addition, 2016) September as promptly as practicable following the date of this Agreement, Cosmo shall deliver to Salix the unaudited consolidated balance sheet of Tech as of June 30, 2016 2014 (collectively the “Latest Balance Sheet”), and the related unaudited statement of income and statement cash flows of Tech for the period ending on June 30, 2014 (together with the financial statements in clauses (a) and (b)Latest Balance Sheet, the “Additional Reviewed Unaudited Financial Statements”)) in each case, including any notes thereto. The Additional Reviewed Unaudited Financial Statements shall: (i) be true, correct shall have been prepared from and complete in all material respects; (ii) be derived from and prepared respects in accordance with the information contained in the Books and Records; (iii) be prepared in accordance with GAAP, consistently applied, throughout the periods covered thereby; and (iv) present accurately and fairly in all material respects the consolidated financial condition, results of operations and cash flows of Seller I, Seller II and Citgen as Records of the times Cosmo Parties, the Continuing Affiliates and the Business.
(b) From the date hereof through the Effective Time, Cosmo shall furnish to Salix, concurrently with the delivery thereof to management of Cosmo or any of its Subsidiaries, such monthly, biannual and annual financial statements and data relating to the Tech Group Entities or the Business as are prepared for distribution to management of Cosmo or any its Subsidiaries and as are required by Form S-4 and Regulation S-X under the periods referred to therein, subject to (A) Securities Act in connection with the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of which will not, individually or in the aggregate, be material)Transactions. The financial statements and data delivered pursuant to this Section 5.22 being the “Additional Reviewed Statements shall be accompanied by an unqualified certification of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to the effect that the Additional Reviewed Statements conform to the requirements of the immediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” for purposes of this Agreement. There shall be no changes in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation of the Additional Reviewed Statements as compared with the Audited Financial Statements”.
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Additional Financial Statements. Between the date hereof and As soon as practicable after January 1, 2017, but in no event later than ten (10) Business Days prior to the Closing Date, Sellers the Company shall deliver to Parent (the “Additional Financial Statements”):
(a) an audited consolidated balance sheet of the Company and Members its Subsidiaries as of December 31, 2016, and consolidated statements of operations, statements of shareholders’ deficit and statements of cash flows of the Company and its Subsidiaries for the twelve (12) months then ended and all related footnotes and other disclosures as required under GAAP (the “2016 Financials”);
(b) an unaudited consolidated balance sheet of the Company as of July 31, 2016, and consolidated statements of operations, statements of shareholders’ deficit and statements of cash flows for the twelve (12) months then ended;
(c) an unaudited consolidated statement of operations that includes the GAAP revenue and GAAP net income (loss) of the Company and its Subsidiaries’ as of January 31, 2016, for the six (6) month period and three (3) month period, in each case, ending on such date;
(d) an unaudited consolidated statement of operations that includes the GAAP revenue and GAAP net income (loss) of the Company and its Subsidiaries’ as of January 31, 2017, for the six (6) month period and three (3) month, in each case, ending on such date;
(e) an unaudited consolidated statement of operations that includes the GAAP revenue and GAAP net income (loss) of the Company and its Subsidiaries’ as of April 30, 2016, for the nine (9) month period and three (3) month period, in each case, ending on such date; The Company will use its best efforts to deliver the 2016 Financials to Parent no later than January 31, 2017. The 2016 Financials and the other Additional Financial Statements shall take all applicable steps to cause Sellers to) provide Parentbe: (a) within fifteen (15) Business Days after the end of each calendar monthtrue, an internally prepared balance sheet as of the end of such month accurate and related internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such monthly period then endedcomplete; (b) except as otherwise required under clause (c) below, within thirty (30) Business Days after consistent with the end of each calendar quarter, a reviewed balance sheet as Books and Records of the end of such quarter and related reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period then ended Company; and (c) on or before December 7, 2016 (but prepared in all events at least five (5) Business Days before Closing), reviewed comparative balance sheets, statements of income, statements of cash flows and statements of changes in members’ equity for each Seller as of and for the quarterly periods ended on March 31, 2016, June 30, 2016 and (if the Closing is after November 15, 2016) September 30, 2016 (collectively accordance with GAAP consistently applied with the financial statements in clauses (a) and (b), the “Additional Reviewed Financial Statements”). The 2016 Financials and the other Additional Reviewed Financial Statements shall: (i) shall be true, correct and complete in all material respects; (ii) be derived from and certified by the Key Stakeholders as having been prepared in accordance with the information contained in the Books and Records; (iii) be prepared in accordance with GAAP, consistently applied, throughout the periods covered thereby; and (iv) present accurately and fairly in all material respects the consolidated financial condition, results of operations and cash flows of Seller I, Seller II and Citgen as of the times and for the periods referred to therein, subject to (A) the absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the effect of which will not, individually or in the aggregate, be material). The Additional Reviewed Statements shall be accompanied by an unqualified certification of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to the effect that the Additional Reviewed Statements conform to the requirements of the immediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Reviewed Financial Statements” for purposes of this Agreement. There shall be no changes in the method of application of Sellers’ and Citgen’s accounting policies or changes in the method of applying Sellers’ and Citgen’s use of estimates in the preparation of the Additional Reviewed Statements as compared with the Audited Financial Statements.foregoing principles
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