Additional Financial Statements. (a) 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 (including the related notes and independent auditors reports thereon) (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 of the first, 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 fiscal quarter, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (including the related notes) (the “2010 Quarterly Financial Statements”), provided, however, that if the Closing occurs on a date which is less than forty-five (45) days 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 forty-five (45) days after the end of such quarterly period in accordance with this Section 7.28, 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 each fiscal quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (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 Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 Day period following the end of its 2010 fiscal year Micron determines in good faith that if the Closing were to occur in such period it is reasonably likely that, absent the Waiver (defined below), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “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 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) create, prepare 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) make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and regulations of the SEC 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 applied on a consistent basis during the periods involved, and (iii) to fairly present, in all material respects, the financial position and results of operations, cash flows and shareholders’ equity (subject, in the case of the Quarterly Financial Statements, to the absence of a statement of shareholders’ equity) of the Company and its Subsidiaries on a consolidated basis, as of the times and for the periods referred to therein. (f) The Company shall cause, and the Sellers shall use all reasonable efforts to cause the Company to cause, (i) the Quarterly 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), (ii) the 2009 Annual Financial Statements to be accompanied by an independent auditors report the form of which conforms with the applicable requirements of the Public 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 “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, it being understood that the Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or Section 15(d) of the 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement 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. (a) Within sixty (60) days following the date hereof, the Company shall, at Purchaser’s sole expense, provide to Purchaser an updated audit of the consolidated balance sheets of the Company and the Company Subsidiaries as of June 30, 2023 and the related consolidated income statements, cash flow statements and statement of changes in equity for each of the fiscal years then ended, including the notes thereto, with such audit prepared in accordance with US GAAS (the “Re-Audited Financial Statements”). The Re-Audited Financial Statements shall be prepared in accordance with and based upon the books and records of the Company and the Company Subsidiaries.
(b) Within seventy-five (75) days following the date hereof, the Company shall prepare and deliver, and provide to Purchaser 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 unaudited balance sheet of the Company and the Company Subsidiaries as of December 31, 20092023, and the related audited consolidated statements of operationsincome statement, cash flows flow statement and shareholders’ statement of changes in equity for the fiscal year six (6) month period ended December 31, 2009 (2023, including the related notes and independent auditors reports thereon) (the “2009 Annual Financial Statements”).
(b) The Company shall prepare and deliverthereto, 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 of the first, 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 fiscal quarter, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (including the related notes) (the “2010 Quarterly Financial Statements”), provided, however, that if the Closing occurs on a date which is less than forty-five (45) days 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 forty-five (45) days after the end of such quarterly period reviewed by PricewaterhouseCoopers in accordance with this Section 7.28, 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 each fiscal quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (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 7.28U.S. AICPA SAS 100 standards.
(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 Within sixty (other than the conditions in Section 9.2(t)(iii)60) would be satisfied during the period 4917039.19 from days following the date Micron expects hereof, the Company shall provide to file its Annual Report on Form 10-K Purchaser the profit and loss statement of the Company and the Company Subsidiaries as of March 31, 2024, for the fiscal year three (3) month period ended August March 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 Day period following the end of its 2010 fiscal year Micron determines in good faith that if the Closing were to occur in such period it is reasonably likely that, absent the Waiver (defined below), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “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 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) create, prepare 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) make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and regulations of the SEC of any such financial 4917039.19 information; or (iii) incur any liability with respect to any such financial information in connection with seeking the Waiver2024.
(d) If the Closing has not occurred before December 31on or prior to August 1, 20102024, the Company shall have no obligation engage PricewaterhouseCoopers, at Purchaser’s sole expense to deliver to Micron prior to conduct an audit of 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 and the Company Subsidiaries as of December 31June 30, 2010 2023 and June 30, 2024, and the related audited consolidated income statements and cash flow statements for each of operations, cash flows and shareholders’ equity for the fiscal year years then ended December 31including the notes thereto, 2010 with a view to enabling such audit prepared in accordance with US GAAS (the Company to finalize such financial statements by March 15, 2011.
(e) “Additional Audited Financial Statements”). The Company shall cause, and the Sellers shall use all its commercially reasonable efforts to cause provide Purchaser with the Company to cause, each of the 2009 Annual Additional Audited Financial Statements and Quarterly by the date reasonably requested by Purchaser but in any event no later than October 15, 2024. The Additional Audited Financial Statements that are required to be delivered pursuant to this Section 7.28, (i) to shall be prepared from in accordance with and based upon the books and records of the Company and its Subsidiaries, (ii) to be prepared in accordance with GAAP applied on a consistent basis during the periods involved, and (iii) to fairly present, in all material respects, the financial position and results of operations, cash flows and shareholders’ equity (subject, in the case of the Quarterly Financial Statements, to the absence of a statement of shareholders’ equity) of the Company and its Subsidiaries on a consolidated basis, as of the times and for the periods referred to thereinSubsidiaries.
(f) The Company shall cause, and the Sellers shall use all reasonable efforts to cause the Company to cause, (i) the Quarterly 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), (ii) the 2009 Annual Financial Statements to be accompanied by an independent auditors report the form of which conforms with the applicable requirements of the Public 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 “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, it being understood that the Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or Section 15(d) of the 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement 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. (a) The Company For each fiscal quarter ending on or after September 30, 2010 and on or before the date that is forty (40) days prior to the Closing Date, Seller shall prepare and deliver, and cause to be delivered within forty (40) days after the Sellers shall use all reasonable efforts last day of such fiscal quarter 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 Buyer an unaudited comparative consolidated balance sheet at the last day of the Company as of December 31such fiscal quarter, 2009, and the related audited unaudited comparative consolidated statements of operationsincome and unaudited consolidated statements of cash flows, cash flows for such quarter and shareholders’ equity the year-to-date period then ended, in each case, prepared in accordance with GAAP, except that such unaudited financial statements shall not contain footnotes and shall be subject to normal and recurring year end adjustments that are not expected to be material in amount, and in each case shall be prepared accordance with Regulation S-X under the Securities Act (including for the fiscal year ended December 31, 2009 (including comparable quarter and the related notes and independent auditors reports thereoncomparable year-to-date periods for the prior year) (collectively, the “2009 Annual Interim Financial Statements”).
(b) The Company If the Closing shall prepare and delivernot have occurred prior to January 31, and the Sellers 2011, Seller shall use all reasonable efforts cause to cause the Company be delivered on or prior to prepare and deliverJanuary 31, 2011 to Micron, (i) as soon as reasonably practicable and in no event later than forty-five (45) days following the end of each of the first, second and third fiscal quarters of the Company following the date of this Agreement, the Buyer an unaudited consolidated balance sheet of for the Company as of the end of such fiscal quarteryear ended December 31, 2010 and the related unaudited consolidated statements of operations and cash flows for such quarterly the period (including the related notes) (the “2010 Quarterly Financial Statements”), provided, however, that if then ended. If the Closing occurs on a date which is less than forty-five (45) days following the end of any fiscal quarter of the Company, the Company shall not have no obligation to deliver to Micron occurred prior to April 1, 2011, Seller shall caused to be delivered on April 1, 2011 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 forty-five (45) days after the end of such quarterly period in accordance with this Section 7.28, and (ii) as soon as reasonably practicable and in no event later than April 15, 2010, the unaudited audited consolidated balance sheet of the Company as of the end of each fiscal quarter ended on or after at December 31, 2008 and on or prior to December 31, 20092010, and the related unaudited audited consolidated statements of operations and cash flows for such quarterly period (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 Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 Day period following the end of its 2010 fiscal year Micron determines in good faith that if the Closing were to occur in such period it is reasonably likely that, absent the Waiver (defined below), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “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 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) create, prepare 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) make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and regulations of the SEC 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 then ended. All 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 GAAP, consistently applied on a consistent basis during throughout the periods involved, except (x) as may be indicated in the footnotes to such financial statements and (iiiy) that the unaudited financial statements shall not contain footnotes and shall be subject to fairly present, normal and recurring year end adjustments that are not expected to be material in all material respects, the financial position and results of operations, cash flows and shareholders’ equity (subject, in the case of the Quarterly Financial Statements, to the absence of a statement of shareholders’ equity) of the Company and its Subsidiaries on a consolidated basis, as of the times and for the periods referred to therein.
(f) The Company shall causeamount, and the Sellers shall use all reasonable efforts to cause the Company to cause, (i) the Quarterly Financial Statements required to be delivered hereunder to have been reviewed by the Company’s independent auditors (which in each case shall be prepared in accordance with Statement on Auditing Standards No. 100), (ii) the 2009 Annual Financial Statements to be accompanied by an independent auditors report the form of which conforms with the applicable requirements of the Public 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 “Required Financial Statements”) to be prepared with such disclosures required by the applicable provisions of Regulation S-X of under 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, it being understood that the Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or Section 15(d) of the Exchange Securities 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement 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
Sources: Stock Purchase Agreement (Endo Pharmaceuticals Holdings Inc)
Additional Financial Statements. The Company shall use its reasonable best efforts during the period between the date of this Agreement and the Closing Date to cause the Company’s auditors to complete (a) 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 2016; (b) the related audited consolidated statements statement of operations, cash flows and change in shareholders’ equity and cash flows of the Company for the fiscal year twelve (12) months ended December 31, 2009 2016; and (including c) the related notes and independent auditors reports thereon) (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 reviewed statement of each of the first, second and third fiscal quarters operations of the Company following for the date 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 AgreementAgreement by Parent or any other failure or delay caused by Parent, the unaudited consolidated 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 end of such fiscal quarter, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (including the related notes) (the “2010 Quarterly Financial Statements”), provided, however, that if the Closing occurs on a date which is less than forty-five (45) days 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 forty-five (45) days after the end of such quarterly period in accordance with this Section 7.28, 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 each fiscal quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (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 Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 Day period following the end of its 2010 fiscal year Micron determines in good faith that if the Closing were to occur in such period it is reasonably likely that, absent the Waiver (defined below), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “Pre-Formation Additional 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 . In connection 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 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) create, prepare 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) make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and regulations of the SEC 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 its 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 best efforts to cause ensure that the Company to cause, each of the 2009 Annual Additional Financial Statements shall: (a) be derived from and Quarterly Financial Statements that are required to be delivered pursuant to this Section 7.28, (i) to be prepared from consistent with the books and records of the Company and its Subsidiaries, Company; (iib) comply as to form in all material respects with applicable accounting requirements with respect thereto as of their respective dates; (c) be prepared in accordance with GAAP applied on a consistent basis during throughout the periods involved, indicated and consistent with each other; (iiid) to fairly present, in all material respects, present the financial position condition of the Company at the dates therein indicated and results of operations, cash flows and shareholders’ equity for the periods therein specified (subject, in the case of the Quarterly Financial Statementsunaudited interim period financial statements, to normal recurring year-end audit adjustments, none of which individually or in the absence of a statement of shareholders’ equityaggregate will be material in amount); (e) of the Company be true, correct and its Subsidiaries on a consolidated basis, as of the times complete; and for the periods referred to therein.
(f) The Company shall cause, be audited (for any financial statements as of or for the 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 act as auditors in the United States and the Sellers shall use all reasonable efforts to cause the Company to cause, (iany auditors’ report(s) the Quarterly Financial Statements required to be delivered hereunder to have been reviewed by the Company’s independent auditors (which annexed thereto shall be in accordance with Statement on Auditing Standards Nounqualified. 100), (ii) Notwithstanding the 2009 Annual Financial Statements preceding sentence or any other provision of this Agreement to be accompanied by an independent auditors report the form of which conforms with the applicable requirements of the Public 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 (collectivelycontrary, the “Required Company makes no representation or warranty with respect to the Additional 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 ; provided, however, 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 no information of the Company and related disclosures required to be provided or knowledge obtained in connection with the transactions contemplated by this Agreementpreparation of the Additional Financial Statements or otherwise shall affect or be deemed to modify, it being understood that amend or supplement any representation or warranty set forth herein or in the Company is not an issuer required Schedules or the conditions to file periodic reports the obligations of the parties to consummate the Merger in accordance with the SEC pursuant terms and provisions hereof, or restrict, impair or otherwise affect any Parent Indemnified Parties’ right to Section 13(a) indemnification hereunder or Section 15(d) otherwise prevent or cure any misrepresentations, breach of the 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) warranty 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement is required to be included in any form, report, registration statement, proxy statement or related document required to be filed by Micron with the SECbreach of covenant.
Appears in 1 contract
Additional Financial Statements. (a) The Company shall prepare and deliver, and 4.2.1 Promptly after the date hereof Sellers shall use all reasonable efforts to cause the Company to prepare and deliverCompany, at Acquiror's expense, to Micron, as soon as reasonably practicable and in no event later than April 15, 2010, engage certified public accountants to audit the audited consolidated balance sheet of the Company as of December 31, 20091996 in accordance with GAAP consistently applied, except as otherwise stated herein and in the related audited consolidated statements reports of operations, cash flows and shareholders’ equity for the fiscal year ended such independent accountants. An unaudited balance sheet as of December 31, 2009 (including 1996, shall be delivered to Acquiror on or before the related notes Closing Date, and independent auditors reports thereon) (the “2009 Annual Financial Statements”)shall be subject to audit, to be completed by February 15, 1997.
(b) The Company shall prepare and deliver4.2.2 After the date hereof, and the Sellers shall use all reasonable efforts to cause the Company to prepare deliver to Acquiror monthly and deliverquarterly financial statements of the Company, to Micronprepared in the ordinary course of the Company's business, (i) as soon as reasonably practicable and but in no event shall any such monthly or quarterly statements be delivered later than thirty or forty-five (45) days following days, respectively, after the end of each the applicable period. Such financial statements shall include a balance sheet, statement of operations and statement of cash flow as of the firstperiods then ended, second shall be prepared on a basis consistent with the Pre-Signing Financial Statements and third fiscal quarters of shall fairly and fully set forth the Company following the date of this Agreement, the unaudited consolidated balance sheet financial condition of the Company as of the end of such fiscal quarterdates indicated, and the related unaudited consolidated statements results of its operations and cash flows for such quarterly period (including the related notes) (the “2010 Quarterly Financial Statements”)periods indicated, provided, however, that if the Closing occurs on a date which is less than forty-five (45) days 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 forty-five (45) days after the end of such quarterly period in accordance with GAAP consistently applied, except as otherwise stated therein.
4.2.3 The financial statements delivered pursuant to this Section 7.28, and (ii) 4.2 are hereinafter referred to 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 each fiscal quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related unaudited consolidated statements of operations and cash flows for such quarterly period (including the related notes) (the “Prior Quarterly "Post-Signing Financial Statements” and, together with the 2010 Quarterly ". The Pre-Signing 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 Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 Day period following the end of its 2010 fiscal year Micron determines in good faith that if the Closing were to occur in such period it is reasonably likely that, absent the Waiver (defined below), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “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 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) create, prepare 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) make any representation or warranty as to the adequacy, accuracy or conformity with GAAP or the rules and regulations of the SEC 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 audited balance sheet of the Company as of December 31, 2010 1996, and the related audited consolidated statements unaudited results of operations, operations and statement of cash flows and shareholders’ equity for the fiscal year twelve months ended December 31, 2010 with a view to enabling the Company to finalize such financial statements by March 15, 2011.
(e) The Company shall cause1996, and the Sellers shall use all reasonable efforts to cause the Company to cause, each of the 2009 Annual Post-Signing Financial Statements and Quarterly Financial Statements that are required herein referred to be delivered pursuant to this Section 7.28, (i) to be prepared from as the books and records of the Company and its Subsidiaries, (ii) to be prepared in accordance with GAAP applied on a consistent basis during the periods involved, and (iii) to fairly present, in all material respects, the financial position and results of operations, cash flows and shareholders’ equity (subject, in the case of the Quarterly "Financial Statements, to the absence of a statement of shareholders’ equity) of the Company and its Subsidiaries on a consolidated basis, as of the times and for the periods referred to therein".
(f) The Company shall cause, and the Sellers shall use all reasonable efforts to cause the Company to cause, (i) the Quarterly 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), (ii) the 2009 Annual Financial Statements to be accompanied by an independent auditors report the form of which conforms with the applicable requirements of the Public 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 “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, it being understood that the Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or Section 15(d) of the 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement 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
Sources: Agreement and Plan of Reorganization (Colorado Medtech Inc)
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) 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 within fifteen (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 (including the related notes and independent auditors reports thereon) (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 Business Days after the end of each of the firstcalendar month, second and third fiscal quarters of the Company following the date of this Agreement, the unaudited consolidated an internally prepared balance sheet of the Company as of the end of such fiscal quarter, month and the related unaudited consolidated internally prepared statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly monthly period then ended; (including the related notesb) except as otherwise required under clause (the “2010 Quarterly Financial Statements”)c) below, provided, however, that if the Closing occurs on a date which is less than forty-five within thirty (4530) days 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 forty-five (45) days Business Days after the end of such quarterly period in accordance with this Section 7.28each calendar quarter, and (ii) as soon as reasonably practicable and in no event later than April 15, 2010, the unaudited consolidated a reviewed balance sheet of the Company as of the end of each fiscal such quarter ended on or after December 31, 2008 and on or prior to December 31, 2009, and the related unaudited consolidated reviewed statements of operations and cash flows of Seller I, Seller II and Citgen for such quarterly period (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.
then ended and (c) If the Closing has not occurred by August 16on or before December 7, 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 2016 (but 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 Form 10-K for the fiscal year ended August 31, 2010 through, and including, December 31, 2010. If Micron, ST and Intel determine in 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 all events at least five (5) Business Day period following 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 end of its 2010 fiscal year Micron determines in good faith that quarterly periods ended on March 31, 2016, June 30, 2016 and (if the Closing were to occur is after November 15, 2016) September 30, 2016 (collectively with the financial statements in such period it is reasonably likely that, absent the Waiver clauses (defined belowa) and (b), 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 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 the Intel ATA and the ST ACA, respectively) for any period ending on or prior to the Formation Closing Date (the “Pre-Formation Financial Additional Reviewed 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 Company, ST and Intel Additional Reviewed Statements 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) createbe true, prepare 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 availablecorrect and complete in all material respects; (ii) make any representation or warranty as to be derived from and prepared in accordance with the adequacy, accuracy or conformity with GAAP or information contained in the rules Books and regulations of the SEC of any such financial 4917039.19 informationRecords; 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 applied on a consistent basis during GAAP, consistently applied, throughout the periods involved, covered thereby; and (iiiiv) to present accurately and fairly present, in all material respectsrespects the consolidated financial condition, the financial position and results of operations, operations and cash flows of Seller I, Seller II and shareholders’ equity (subject, in the case of the Quarterly Financial Statements, to the absence of a statement of shareholders’ equity) of the Company and its Subsidiaries on a consolidated basis, Citgen as of the times and for the periods referred to therein.
, subject to (fA) The Company shall causethe absence of footnote disclosures and other presentation items, and (B) changes resulting from normal year-end adjustments (the Sellers effect of which will not, individually or in the aggregate, be material). The Additional Reviewed Statements shall use all reasonable efforts to cause the Company to cause, (i) the Quarterly 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), (ii) the 2009 Annual Financial Statements to be accompanied by an independent auditors report unqualified certification of each Seller’s and Citgen’s chief financial officer (or similar executive officer) to the form of which conforms with effect that the applicable Additional Reviewed Statements conform to the requirements of the Public 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 (collectivelyimmediately preceding sentence. Upon delivery to Parent, the Additional Reviewed Statements shall be considered “Required Reviewed 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) this Agreement. There shall be no changes in the method of application of Sellers’ and (iii) Citgen’s accounting policies or changes in the method of this Section 7.28(f), applying Sellers’ and Citgen’s use of estimates in the applicable rules and regulations preparation 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 Additional Reviewed Statements as compared with the transactions contemplated by this Agreement, it being understood that the Company is not an issuer required to file periodic reports with the SEC pursuant to Section 13(a) or Section 15(d) of the 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 Audited 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 SEC, except to the extent that any information included in or derived from any such Quarterly Financial Statement 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.
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