Common use of Financial Statement Preparation Clause in Contracts

Financial Statement Preparation. The Company shall use its reasonable best efforts prior to Closing to prepare, or assist Buyer in causing to be prepared, as promptly as practicable, any financial statements that Buyer is required to file with the SEC pursuant to Form 8-K and Rule 3-05 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or that are necessary in order for Buyer to comply with Article 11 of Regulation S-X under the Exchange Act (which, for the avoidance of doubt, shall include (a) the audited balance sheets and the related audited statements of operations, changes in stockholders’ equity (deficit) and cash flows of the Company as of and for the fiscal years ended December 31, 2017 (the “2017 Audited Financial Statements”) and December 31, 2018 (the “2018 Audited Financial Statements” and, together with the 2017 Audited Financial Statements, the “Audited Financial Statements”), in each case, audited in accordance the American Institute of Certified Public Accountants (“AICPA”) standards by auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such audited financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) that are independent thereunder and who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer, (b) the unaudited balance sheets and related statements of operations and cash flows of the Company for each subsequent fiscal quarter after the most recent balance sheet date described in clause (a) that ends at least forty-five (45) calendar days prior to the Closing Date (including the comparable information for the comparable prior-year period), in each case, reviewed in accordance with AICPA Statement of Auditing Standards 100 by AICPA independent auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such reviewed financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer (collectively, the “Interim Financial Statements”), and (c) information regarding the Company necessary for Buyer’s preparation of customary pro forma financial statements that comply with Rule 11-02(c)(3) of Regulation S-X under the Securities Act, including the unaudited balance sheets and related statements of operations and cash flows of the Company for the six month periods ended June 30, 2017 and 2018 (the “11-02(c)(3) Company Information”), in each case, reviewed in accordance with AICPA Statement of Auditing Standards 100 by AICPA independent auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such reviewed financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer (the 11-02(c)(3) Company Information, together with the 2017 Audited Financial Statements, the “11-02(c)(3) Financial Statements”). The Company shall use its reasonable best efforts to obtain the consents of its auditors with respect to the 2018 Audited Financial Statements as may be required by applicable SEC regulations and Form 8-K. Buyer and Merger Sub acknowledge and agree that delivering or obtaining the financial statements and other documents and information contemplated by this Section 4.11 is not a condition to Closing and shall in no event delay the consummation of the Closing.

Financial Statement Preparation. (a) The Company shall use its commercially reasonable best efforts to cooperate with Buyer, Buyer Parent and their accounting advisors in order to enable Buyer Parent to reasonably promptly determine whether it is or would be required to include audited, unaudited and/or pro forma financial statements related to the Transferred Assets for any periods prior to Closing to prepare, or assist in the reports filed by Buyer in causing to be prepared, as promptly as practicable, any financial statements that Buyer is required to file Parent with the SEC pursuant to Form 8-K Securities and Rule 3-05 Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange 1934 Act”) ), or that are necessary in order for a registration statement filed by Buyer to comply Parent with Article 11 the SEC under the Securities Act of 1933, as amended (the “1933 Act”), in accordance with Regulation S-X (“Regulation S-X”) promulgated by the SEC (the “Required Financial Statements”). For purposes of clarification, if financial statements covering different periods could constitute the Required Financial Statements under the Exchange 1934 Act (which, for the avoidance of doubt, shall include (a) the audited balance sheets or 1933 Act and the related audited statements rules and regulations promulgated thereunder, then Buyer Parent shall determine which such periods will constitute the Required Financial Statements for purposes of operations, changes in stockholders’ equity (deficit) and cash flows this Agreement. Such commercially reasonable efforts of the Company shall include providing to Buyer, Buyer Parent and their accounting advisors reasonably promptly such financial information readily available to the Company related to the Transferred Assets as of and for the fiscal years ended December 31, 2017 Buyer Parent may reasonably request (the “2017 Audited Financial Information”). (b) If Buyer determines that it is required to file with the SEC the Required Financial Statements, then Buyer Parent shall, at its or Buyer’s sole expense, use its commercially reasonable efforts to obtain permission from the SEC’s Division of Corporation Finance, Office of the Chief Accountant (“OCA”) and December 31, 2018 (for the use of “2018 Audited Abbreviated Financial Statements” andas described in Section 2065.4 through 2065.12 of the Division of Corporation Finance Financial Reporting Manual. The Company shall cooperate with Buyer Parent’s efforts to obtain such permission at the same level as described in Section 4.8(a) above. The Company (and its legal and accounting advisors) shall also have the right to, together but shall not be obligated to, participate in any discussions with OCA regarding such request (which shall occur only after reasonable advance notice to the Company) and to review and comment upon any written requests or materials supporting such requests to OCA. If the Company provides such review and comment, Buyer shall consider the Company’s comments in good faith. (c) If Buyer Parent determines that it is required to file with the 2017 Audited SEC the Required Financial Statements, then Buyer or Buyer Parent shall retain KPMG LLP (subject to the proviso below) at Buyer’s or Buyer Parent’s sole expense to prepare the Required Financial Statements; provided that, if KPMG LLP’s fees for such engagement exceed $50,000, KPMG is unable to complete the engagement within the required time frame, or KPMG LLP declines such engagement for a reason other than Buyer’s or Buyer Parent’s unwillingness to agree to KPMG LLP’s other engagement terms, then Buyer and Buyer Parent shall select and retain, at Buyer’s or Buyer Parent’s sole expense, an alternative public accounting firm subject to the approval of the Company, which approval will not be unreasonably withheld or delayed (the accounting firm preparing the Required Financial Statements, the “Audited Preparing Firm”). (d) From and after January 20, 2015, the Company shall provide to the Preparing Firm the Financial StatementsInformation as is reasonably necessary to enable the Preparing Firm to prepare the Required Financial Statements and for the auditing firm engaged by Buyer Parent to audit the applicable Required Financial Statements at Buyer or Buyer Parent’s sole expense (the “Auditing Firm”), in each case, audited in accordance to conduct such audit and provide a related audit report no later than the American Institute of Certified Public Accountants (“AICPA”) standards by auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such audited financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) that are independent thereunder and who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer, (b) the unaudited balance sheets and related statements of operations and cash flows of the Company for each subsequent fiscal quarter after the most recent balance sheet date described in clause (a) that ends at least forty-five (45) calendar days prior to the Closing Date (including the comparable information deadline for the comparable prior-year period), in each case, reviewed in accordance with AICPA Statement of Auditing Standards 100 by AICPA independent auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such reviewed financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer (collectively, the “Interim Financial Statements”), and (c) information regarding the Company necessary for Buyer’s preparation of customary pro forma financial statements that comply with Rule 11-02(c)(3) of Regulation S-X filing thereof under the Securities Act, including the unaudited balance sheets and related statements of operations and cash flows of the Company for the six month periods ended June 30, 2017 and 2018 (the “11-02(c)(3) Company Information”), in each case, reviewed in accordance with AICPA Statement of Auditing Standards 100 by AICPA independent auditors selected by the Company (provided that such auditors are reasonably expected to be able to deliver such reviewed financial statements and the “comfort letters” described below prior to the date that is seventy six (76) days following the Closing Date) who can provide customary “comfort letters” (including customary “negative assurances”) with respect to such financial statements included in any offering memorandum for a Rule 144A offering of debt securities of Buyer (the 11-02(c)(3) Company Information, together with the 2017 Audited Financial Statements, the “11-02(c)(3) Financial Statements”). The Company shall use its reasonable best efforts to obtain the consents of its auditors with respect to the 2018 Audited Financial Statements as may be required by applicable SEC regulations 1934 Act and Form 8-K. K promulgated by the SEC thereunder. Buyer Parent shall use its commercially reasonable efforts to retain KPMG LLP as the Auditing Firm unless KPMG LLP declines the engagement, in which case Buyer Parent shall select and Merger Sub acknowledge retain, at Buyer or Buyer Parent’s sole expense, an alternative public accounting firm as the Auditing Firm subject to the approval of the Company, which approval will not be unreasonably withheld or delayed. The Company’s cooperation shall be at the same level as described in Section 4.8(a) above. Additionally, from and agree that delivering after January 20, 2015, the Company shall provide to the Preparing Firm and the Auditing Firm reasonable access to the records of the Company regarding the Financial Information subject to reasonable advance notice and agreed scheduling during normal business hours, and the Company’s accounting staff shall be reasonably available to address any questions of the Preparing Firm or obtaining the financial statements Auditing Firm pertaining to the Financial Information or the Required Financial Statements. The Company’s commercially reasonable efforts to cooperate shall include providing the auditor retained by Buyer or Buyer Parent with reasonable and other documents and information contemplated customary representation letters in connection with the Required Financial Statements to the extent such letters are reasonably requested by such auditor in connection with reviewing or auditing, as applicable, the Required Financial Statements. (e) The Company’s obligations under this Section 4.11 is not a condition 4.8 are subject to Closing Buyer, Buyer Parent, the Preparing Firm and shall the Auditing Firm entering into confidentiality agreements in no event delay customary form with respect to information provided under this Section 4.8, it being understood that information required under the consummation rules and regulations of the ClosingSEC to be disclosed in the Required Financial Statements will not be deemed confidential under such agreements. (f) Buyer shall reimburse the Company promptly following demand for the reasonable and documented out-of-pocket legal and accounting fees and expenses incurred by the Company in connection with its obligations under this Section 4.8 and its participation, if it chooses to do so, in the OCA request described in Section 4.8(b) above.