FINANCIAL STATEMENTS COVENANTS. For so long as ICN is required to include in its consolidated financial statements Ribapharm's results of operations, (determined in accordance with GAAP): (i) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a fiscal year which commences on January 1 and ends on December 31 of each calendar year. (ii) Ribapharm shall deliver to ICN all schedules consistent with ICN's corporate closing requirements and in a time consistent with ICN's corporate closing schedule. (iii) Except to the extent required by law (including SEC rules and regulations), Ribapharm shall cause PricewaterhouseCoopers, LLP ("PwC") to be retained as the independent certified public accountants to audit its consolidated financial statements ("Ribapharm's Auditors") unless (x) Ribapharm receives the prior written consent of ICN (which consent will not be unreasonably withheld if Ribapharm has demonstrated to ICN that it is justified in not retaining PwC by reason of any action or inaction of PwC), (y) ICN no longer uses PwC to audit its consolidated financial statements or (z) PwC resigns as Ribapharm's Auditors. If PwC ceases to be Ribapharm's Auditors, then Ribapharm shall retain independent certified public accountants of nationally recognized standing as Ribapharm's Auditors. (iv) As soon as practicable, and in any event within 35 days after the end of each of the first three fiscal quarters in each fiscal year of Ribapharm (but in no event later than five days before Ribapharm intends to file its Quarterly Financial Statements (as defined below) with the SEC), Ribapharm shall deliver to ICN drafts of (A) the consolidated financial statements of Ribapharm (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Ribapharm the consolidated figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X, and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal quarter, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." No later than the earlier of (x) two Business Days prior to the date Ribapharm files its Quarterly Report on Form 10-Q with the SEC or otherwise makes its Quarterly Financial Statements publicly available or (y) two Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Quarterly Report on Form 10-Q with the SEC (but in no event earlier than the 5th day before ICN's Quarterly Report on Form 10-Q is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Quarterly Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the consolidated financial condition and results of operations of Ribapharm; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Quarterly Financial Statements and related disclosures prior to the actual filing of its Quarterly Report on Form 10-Q with the SEC. (v) Ribapharm shall use its reasonable best efforts to enable Ribapharm's Auditors to complete their audit such that they will date their opinion on Ribapharm's audited annual financial statements on the same date that ICN's independent certified public accountants ("ICN's
Appears in 2 contracts
Samples: Affiliation and Distribution Agreement (Ribapharm Inc), Affiliation and Distribution Agreement (Ribapharm Inc)
FINANCIAL STATEMENTS COVENANTS. For so long as ICN is required to include in its consolidated financial statements Ribapharm's results of operations, (determined in accordance with GAAP):
(i) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a fiscal year which commences on January 1 and ends on December 31 of each calendar year.
(ii) Ribapharm shall deliver to ICN all schedules consistent with ICN's corporate closing requirements and in a time consistent with ICN's corporate closing schedule.
(iii) Except to the extent required by law (including SEC rules and regulations), Ribapharm shall cause PricewaterhouseCoopers, LLP ("PwC") to be retained as the independent certified public accountants to audit its consolidated financial statements ("Ribapharm's Auditors") unless (x) Ribapharm receives the prior written consent of ICN (which consent will not be unreasonably withheld if Ribapharm has demonstrated to ICN that it is justified in not retaining PwC by reason of any action or inaction of PwC), (y) ICN no longer uses PwC to audit its consolidated financial statements or (z) PwC resigns as Ribapharm's Auditors. If PwC ceases to be Ribapharm's Auditors, then Ribapharm shall retain independent certified public accountants of nationally recognized standing as Ribapharm's Auditors.
(iv) As soon as practicable, and in any event within 35 days after the end of each of the first three fiscal quarters in each fiscal year of Ribapharm (but in no event later than five days before Ribapharm intends to file its Quarterly Financial Statements (as defined below) with the SEC), Ribapharm shall deliver to ICN drafts of (A) the consolidated financial statements of Ribapharm (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Ribapharm the consolidated figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X, and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal quarter, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." No later than the earlier of (x) two Business Days prior to the date Ribapharm files its Quarterly Report on Form 10-Q with the SEC or otherwise makes its Quarterly Financial Statements publicly available or (y) two Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Quarterly Report on Form 10-Q with the SEC (but in no event earlier than the 5th day before ICN's Quarterly Report on Form 10-Q is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Quarterly Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the consolidated financial condition and results of operations of Ribapharm; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Quarterly Financial Statements and related disclosures prior to the actual filing of its Quarterly Report on Form 10-Q with the SEC.
(v) Ribapharm shall use its reasonable best efforts to enable Ribapharm's Auditors to complete their audit such that they will date their opinion on Ribapharm's audited annual financial statements on the same date that ICN's independent certified public accountants ("ICN's's Auditors") date their opinion on ICN's audited annual financial statements (the "ICN Annual Statements"), and to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements. To this end, Ribapharm shall deliver to ICN as soon as practicable, and in any event within 75 days after the end of each fiscal year of Ribapharm (but in no event later than ten days before Ribapharm intends to file its Annual Financial Statements (as defined below) with the SEC), (A) drafts of the consolidated financial statements of Ribapharm (and notes thereto) for such year, setting forth in each case in comparative form the consolidated figures (and notes thereto) for the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such year, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal year, all in reasonable detail and prepared in accordance with Item 303(a) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Annual Financial Statements." Ribapharm shall deliver to ICN all revisions to such drafts as soon as any such revisions are prepared or made. No later than the earlier of (1) five Business Days prior to the date Ribapharm files its Annual Report on Form 10-K with the SEC or otherwise makes its Annual Financial Statements publicly available or (2) five Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Annual Report on Form 10-K with the SEC (but in no event earlier than the 5th day before ICN's Annual Report on Form 10-K is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Annual Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the financial condition and results of operations of Ribapharm and its Subsidiaries; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Annual Financial Statements and related disclosures prior to the actual filing of its Annual Report on Form 10-K with the SEC. The Annual Financial Statements shall also be accompanied by an opinion thereon by Ribapharm's independent certified public accountants.
(vi) Ribapharm shall deliver to ICN all Quarterly and Annual Financial Statements of each Ribapharm Affiliate (which (a) Ribapharm consolidates for financial accounting purposes and (b) is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available) with such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of Ribapharm required to be delivered to ICN pursuant to this Section 5.1.
(vii) Ribapharm shall, and shall cause each Ribapharm Affiliate which files information with the SEC, to deliver to ICN: (A) as soon as the same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or made available by Ribapharm or any Ribapharm Affiliate to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by Ribapharm or any Ribapharm Affiliate with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such exchange (collectively, the documents identified in clauses (x), (y) and (z) are referred to herein as "Ribapharm Public Filings"), and (B) as soon as practicable, but in no event later than one Business Day prior to the date the same are printed, sent or filed, whichever is earliest, final copies of all such Ribapharm Public Filings; provided that Ribapharm may continue to revise such Ribapharm Public Filings prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by Ribapharm to ICN as soon as practicable; and, provided, further, that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to any of its Ribapharm Public Filings and related disclosures prior to any anticipated filing with the SEC.
(viii) With reasonable promptness, Ribapharm shall deliver to ICN such additional financial and other information and data with respect to Ribapharm and its Subsidiaries and their business, properties, financial positions, results of operations and prospects as from time to time may be reasonably requested by ICN.
(ix) ICN agrees to provide to Ribapharm all information relating to ICN or any ICN Affiliate that Ribapharm reasonably requests in connection with any Ribapharm Public Filings or that, in the judgment of Ribapharm's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. ICN agrees that such information shall be provided by ICN in a timely manner on the dates reasonably requested by Ribapharm (which may be earlier than the dates on which ICN otherwise would be required hereunder to have such information available) to enable Ribapharm to prepare, print and release all Ribapharm Public Filings on such dates as Ribapharm shall determine. If and to the extent reasonably requested by Ribapharm, ICN agrees that it shall diligently and promptly review all drafts of such Ribapharm Public Filings and prepare in a diligent and timely fashion any portion of such Ribapharm Public Filing pertaining to ICN or any ICN Affiliate.
(x) Ribapharm shall authorize Ribapharm's Auditors to make available to ICN's Auditors both the personnel who performed or are performing the annual audit of Ribapharm and work papers related to the annual audit of Ribapharm, in all cases within a reasonable time prior to the date of Ribapharm's Auditors' opinion on Ribapharm's audited financial statements, so that ICN's Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Ribapharm's Auditors as it relates to ICN's Auditors' report on ICN's statements, all within sufficient time to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements.
(xi) Ribapharm shall provide ICN's internal auditors access to Ribapharm's and its Subsidiaries, books and records so that ICN may conduct reasonable audits relating to the financial statements provided by Ribapharm pursuant hereto as well as to the internal accounting controls and operations of Ribapharm and its Subsidiaries.
(xii) Ribapharm shall give ICN as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the date hereof. Ribapharm will consult with ICN and, if requested by ICN, Ribapharm will consult with ICN's independent public accountants with respect thereto.
(xiii) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a system of internal accounting controls that will provide reasonable assurance that (A) Ribapharm's and such Ribapharm Affiliate's books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(xiv) Ribapharm shall cooperate fully, and cause its accountants to cooperate, with ICN to the extent reasonably requested by ICN in the preparation of ICN's public earnings releases, Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by ICN with the SEC, any national securities exchange or otherwise made publicly available (collectively, "ICN Public Filings"). Ribapharm agrees to provide to ICN all information relating to Ribapharm or any Ribapharm Affiliate that ICN reasonably requests in connection with any ICN Public Filings or that, in the judgment of ICN's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. Such information shall be provided by Ribapharm in a timely manner on the dates reasonably requested by ICN (which may be earlier than the dates on which Ribapharm otherwise would be required hereunder to have such information available) to enable ICN to prepare, print and release all ICN Public Filings on such dates as ICN shall determine. Ribapharm shall cause its accountants to consent to any reference to them as experts in any ICN Public Filings required under any law, rule or regulation. If and to the extent reasonably requested by ICN, Ribapharm shall diligently and promptly review all drafts of such ICN Public Filings and prepare in a diligent and timely fashion any portion of such ICN Public Filing pertaining to Ribapharm or any Ribapharm Affiliate. Prior to any printing or public release of any ICN Public Filing, an appropriate executive officer of Ribapharm shall, if requested by ICN, certify that the information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business in such ICN Public Filing is accurate, true and correct in all material respects. Unless required by law, rule or regulation, Ribapharm shall not publicly release any financial or other information which conflicts with the information with respect to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business that is included in any ICN Public Filing without ICN's prior written consent. Prior to the release or filing thereof, ICN shall provide Ribapharm with a draft of any portion of an ICN Public Filing containing information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business and shall give Ribapharm an opportunity to review such information and comment thereon; provided that ICN shall determine in its sole discretion the final form and content of all ICN Public Filings.
(xv) ICN agrees that it shall cooperate fully, and cause its accountants to cooperate fully, with Ribapharm to the extent reasonably requested by Ribapharm in the preparation of any Ribapharm Public Filings.
(xvi) Prior to the release or filing thereof, Ribapharm shall provide ICN with a draft of any portion of a Ribapharm Public Filing containing information relating to ICN or any ICN Affiliate and shall give ICN an opportunity to review such information and comment thereon; provided that Ribapharm shall determine in its sole discretion the final form and content of all Ribapharm Public Filings. Nothing in this Section 5.1 shall require Ribapharm to violate any agreement with any of its customers regarding the confidentiality of commercially sensitive information relating to that customer or its business; provided that in the event that Ribapharm would otherwise be required under this Section 5.1, but for such agreement, to disclose any such information, Ribapharm shall use all commercially reasonable efforts to seek to obtain such customer's consent to the disclosure of such information.
Appears in 1 contract
Samples: Affiliation and Distribution Agreement (Ribapharm Inc)
FINANCIAL STATEMENTS COVENANTS. For so long as ICN is required to include in its consolidated financial statements Ribapharm's results of operations, (determined in accordance with GAAP):
(i) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a fiscal year which commences on January 1 and ends on December 31 of each calendar year.
(ii) Ribapharm shall deliver to ICN all schedules consistent with ICN's corporate closing requirements and in a time consistent with ICN's corporate closing schedule.
(iii) Except to the extent required by law (including SEC rules and regulations), Ribapharm shall cause PricewaterhouseCoopers, LLP ("PwC") to be retained as the independent certified public accountants to audit its consolidated financial statements ("Ribapharm's Auditors") unless (x) Ribapharm receives the prior written consent of ICN (which consent will not be unreasonably withheld if Ribapharm has demonstrated to ICN that it is justified in not retaining PwC by reason of any action or inaction of PwC), (y) ICN no longer uses PwC to audit its consolidated financial statements or (z) PwC resigns as Ribapharm's Auditors. If PwC ceases to be Ribapharm's Auditors, then Ribapharm shall retain independent certified public accountants of nationally recognized standing as Ribapharm's Auditors.
(iv) As soon as practicable, and in any event within 35 days after the end of each of the first three fiscal quarters in each fiscal year of Ribapharm (but in no event later than five days before Ribapharm intends to file its Quarterly Financial Statements (as defined below) with the SEC), Ribapharm shall deliver to ICN drafts of (A) the consolidated financial statements of Ribapharm (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Ribapharm the consolidated figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X, and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal quarter, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." No later than the earlier of (x) two Business Days prior to the date Ribapharm files its Quarterly Report on Form 10-Q with the SEC or otherwise makes its Quarterly Financial Statements publicly available or (y) two Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Quarterly Report on Form 10-Q with the SEC (but in no event earlier than the 5th day before ICN's Quarterly Report on Form 10-Q is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Quarterly Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the consolidated financial condition and results of operations of Ribapharm; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Quarterly Financial Statements and related disclosures prior to the actual filing of its Quarterly Report on Form 10-Q with the SEC.
(v) Ribapharm shall use its reasonable best efforts to enable Ribapharm's Auditors to complete their audit such that they will date their opinion on Ribapharm's audited annual financial statements on the same date that ICN's independent certified public accountants ("ICN's's Auditors") date their opinion on ICN's audited annual financial statements (the "ICN Annual Statements"), and to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements. To this end, Ribapharm shall deliver to ICN as soon as practicable, and in any event within 75 days after the end of each fiscal year of Ribapharm (but in no event later than ten days before Ribapharm intends to file its Annual Financial Statements (as defined below) with the SEC), (A) drafts of the consolidated financial statements of Ribapharm (and notes thereto) for such year, setting forth in each case in comparative form the consolidated figures (and notes thereto) for the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such year, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal year, all in reasonable detail and prepared in accordance with Item 303(a) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Annual Financial Statements." Ribapharm shall deliver to ICN all revisions to such drafts as soon as any such revisions are prepared or made. No later than the earlier of (1) five Business Days prior to the date Ribapharm files its Annual Report on Form 10-K with the SEC or otherwise makes its Annual Financial Statements publicly available or (2) five Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Annual Report on Form 10-K with the SEC (but in no event earlier than the 5th day before ICN's Annual Report on Form 10-K is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Annual Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the financial condition and results of operations of Ribapharm and its Subsidiaries; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Annual Financial Statements and related disclosures prior to the actual filing of its Annual Report on Form 10-K with the SEC. The Annual Financial Statements shall also be accompanied by an opinion thereon by Ribapharm's independent certified public accountants.
(vi) Ribapharm shall deliver to ICN all Quarterly and Annual Financial Statements of each Ribapharm Affiliate (which (a) Ribapharm consolidates for financial accounting purposes and (b) is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available) with such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of Ribapharm required to be delivered to ICN pursuant to this Section 5.1.
(vii) Ribapharm shall, and shall cause each Ribapharm Affiliate which files information with the SEC, to deliver to ICN: (A) as soon as the same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or made available by Ribapharm or any Ribapharm Affiliate to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by Ribapharm or any Ribapharm Affiliate with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such exchange (collectively, the documents identified in clauses (x), (y) and (z) are referred to herein as "Ribapharm Public Filings"), and (B) as soon as practicable, but in no event later than one Business Day prior to the date the same are printed, sent or filed, whichever is earliest, final copies of all such Ribapharm Public Filings; provided that Ribapharm may continue to revise such Ribapharm Public Filings prior to the filing thereof in order to make corrections and changes which corrections and changes shall be delivered by Ribapharm to ICN as soon as practicable; and, provided, further, that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to any of its Ribapharm Public Filings and related disclosures prior to any anticipated filing with the SEC.
(viii) With reasonable promptness, Ribapharm shall deliver to ICN such additional financial and other information and data with respect to Ribapharm and its Subsidiaries and their business, properties, financial positions, results of operations and prospects as from time to time may be reasonably requested by ICN.
(ix) ICN agrees to provide to Ribapharm all information relating to ICN or any ICN Affiliate that Ribapharm reasonably requests in connection with any Ribapharm Public Filings or that, in the judgment of Ribapharm's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. ICN agrees that such information shall be provided by ICN in a timely manner on the dates reasonably requested by Ribapharm (which may be earlier than the dates on which ICN otherwise would be required hereunder to have such information available) to enable Ribapharm to prepare, print and release all Ribapharm Public Filings on such dates as Ribapharm shall determine. If and to the extent reasonably requested by Ribapharm, ICN agrees that it shall diligently and promptly review all drafts of such Ribapharm Public Filings and prepare in a diligent and timely fashion any portion of such Ribapharm Public Filing pertaining to ICN or any ICN Affiliate.
(x) Ribapharm shall authorize Ribapharm's Auditors to make available to ICN's Auditors both the personnel who performed or are performing the annual audit of Ribapharm and work papers related to the annual audit of Ribapharm, in all cases within a reasonable time prior to the date of Ribapharm's Auditors' opinion on Ribapharm's audited financial statements, so that ICN's Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Ribapharm's Auditors as it relates to ICN's Auditors' report on ICN's statements, all within sufficient time to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements.
(xi) Ribapharm shall provide ICN's internal auditors access to Ribapharm's and its Subsidiaries, books and records so that ICN may conduct reasonable audits relating to the financial statements provided by Ribapharm pursuant hereto as well as to the internal accounting controls and operations of Ribapharm and its Subsidiaries.
(xii) Ribapharm shall give ICN as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the date hereof. Ribapharm will consult with ICN and, if requested by ICN, Ribapharm will consult with ICN's independent public accountants with respect thereto.
(xiii) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a system of internal accounting controls that will provide reasonable assurance that (A) Ribapharm's and such Ribapharm Affiliate's books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(xiv) Ribapharm shall cooperate fully, and cause its accountants to cooperate, with ICN to the extent reasonably requested by ICN in the preparation of ICN's public earnings releases, Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by ICN with the SEC, any national securities exchange or otherwise made publicly available (collectively, "ICN Public Filings"). Ribapharm agrees to provide to ICN all information relating to Ribapharm or any Ribapharm Affiliate that ICN reasonably requests in connection with any ICN Public Filings or that, in the judgment of ICN's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. Such information shall be provided by Ribapharm in a timely manner on the dates reasonably requested by ICN (which may be earlier than the dates on which Ribapharm otherwise would be required hereunder to have such information available) to enable ICN to prepare, print and release all ICN Public Filings on such dates as ICN shall determine. Ribapharm shall cause its accountants to consent to any reference to them as experts in any ICN Public Filings required under any law, rule or regulation. If and to the extent reasonably requested by ICN, Ribapharm shall diligently and promptly review all drafts of such ICN Public Filings and prepare in a diligent and timely fashion any portion of such ICN Public Filing pertaining to Ribapharm or any Ribapharm Affiliate. Prior to any printing or public release of any ICN Public Filing, an appropriate executive officer of Ribapharm shall, if requested by ICN, certify that the information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business in such ICN Public Filing is accurate, true and correct in all material respects. Unless required by law, rule or regulation, Ribapharm shall not publicly release any financial or other information which conflicts with the information with respect to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business that is included in any ICN Public Filing without ICN's prior written consent. Prior to the release or filing thereof, ICN shall provide Ribapharm with a draft of any portion of a ICN Public Filing containing information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business and shall give Ribapharm an opportunity to review such information and comment thereon; provided that ICN shall determine in its sole discretion the final form and content of all ICN Public Filings.
(xv) ICN agrees that it shall cooperate fully, and cause its accountants to cooperate fully, with Ribapharm to the extent reasonably requested by Ribapharm in the preparation of any Ribapharm Public Filings.
(xvi) Prior to the release or filing thereof, Ribapharm shall provide ICN with a draft of any portion of a Ribapharm Public Filing containing information relating to ICN or any ICN Affiliate and shall give ICN an opportunity to review such information and comment thereon; provided that Ribapharm shall determine in its sole discretion the final form and content of all Ribapharm Public Filings. Nothing in this Section 5.1 shall require Ribapharm to violate any agreement with any of its customers regarding the confidentiality of commercially sensitive information relating to that customer or its business; provided that in the event that Ribapharm would otherwise be required under this Section 5.1, but for such agreement, to disclose any such information, Ribapharm shall use all commercially reasonable efforts to seek to obtain such customer's consent to the disclosure of such information.
Appears in 1 contract
Samples: Affiliation and Distribution Agreement (Ribapharm Inc)
FINANCIAL STATEMENTS COVENANTS. For so long as ICN is required to include in its consolidated financial statements Ribapharm's results of operations, operations (determined in accordance with GAAP):
(i) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a fiscal year which commences on January 1 and ends on December 31 of each calendar year.
(ii) Ribapharm shall deliver to ICN all schedules consistent with ICN's corporate closing requirements and in a time consistent with ICN's corporate closing schedule.
(iii) Except to the extent required by law (including SEC rules and regulations), Ribapharm shall cause PricewaterhouseCoopers, LLP ("PwC") to be retained as the independent certified public accountants to audit its consolidated financial statements ("Ribapharm's Auditors") unless (x) Ribapharm receives the prior written consent of ICN (which consent will not be unreasonably withheld if Ribapharm has demonstrated to ICN that it is justified in not retaining PwC by reason of any action or inaction of PwC), (y) ICN no longer uses PwC to audit its consolidated financial statements or (z) PwC resigns as Ribapharm's Auditors. If PwC ceases to be Ribapharm's Auditors, then Ribapharm shall retain independent certified public accountants of nationally recognized standing as Ribapharm's Auditors.
(iv) As soon as practicable, and in any event within 35 days after the end of each of the first three fiscal quarters in each fiscal year of Ribapharm (but in no event later than five days before Ribapharm intends to file its Quarterly Financial Statements (as defined below) with the SEC), Ribapharm shall deliver to ICN drafts of (A) the consolidated financial statements of Ribapharm (and notes thereto) for such periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Ribapharm the consolidated figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X, and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal quarter, all in reasonable detail and prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Quarterly Financial Statements." No later than the earlier of (x) two Business Days prior to the date Ribapharm files its Quarterly Report on Form 10-Q with the SEC or otherwise makes its Quarterly Financial Statements publicly available or (y) two Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Quarterly Report on Form 10-Q with the SEC (but in no event earlier than the 5th day before ICN's Quarterly Report on Form 10-Q is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Quarterly Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the consolidated financial condition and results of operations of Ribapharm; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Quarterly Financial Statements and related disclosures prior to the actual filing of its Quarterly Report on Form 10-Q with the SEC.may
(v) Ribapharm shall use its reasonable best efforts to enable Ribapharm's Auditors to complete their audit such that they will date their opinion on Ribapharm's audited annual financial statements on the same date that ICN's independent certified public accountants ("ICN's's Auditors") date their opinion on ICN's audited annual financial statements (the "ICN Annual Statements"), and to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements. To this end, Ribapharm shall deliver to ICN as soon as practicable, and in any event within 75 days after the end of each fiscal year of Ribapharm (but in no event later than ten days before Ribapharm intends to file its Annual Financial Statements (as defined below) with the SEC), (A) drafts of the consolidated financial statements of Ribapharm (and notes thereto) for such year, setting forth in each case in comparative form the consolidated figures (and notes thereto) for the previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X and (B) a discussion and analysis by management of Ribapharm's consolidated financial condition and results of operations for such year, including, without limitation, an explanation of any material adverse change from the immediately preceding fiscal year, all in reasonable detail and prepared in accordance with Item 303(a) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "Annual Financial Statements." Ribapharm shall deliver to ICN all revisions to such drafts as soon as any such revisions are prepared or made. No later than the earlier of (1) five Business Days prior to the date Ribapharm files its Annual Report on Form 10-K with the SEC or otherwise makes its Annual Financial Statements publicly available or (2) five Business Days prior to the date on which ICN has notified Ribapharm that it intends to file its Annual Report on Form 10-K with the SEC (but in no event earlier than the 5th day before ICN's Annual Report on Form 10-K is required to be filed with the SEC), Ribapharm shall deliver to ICN the final form of the Annual Financial Statements certified by the chief financial officer of Ribapharm as presenting fairly, in all material respects, the financial condition and results of operations of Ribapharm and its Subsidiaries; provided that ICN and Ribapharm financial representatives shall actively consult with each other regarding any changes (whether or not substantive) which Ribapharm may consider making to its Annual Financial Statements and related disclosures prior to the actual filing of its Annual Report on Form 10-K with the SEC. The Annual Financial Statements shall also be accompanied by an opinion thereon by Ribapharm's independent certified public accountants.
(vi) Ribapharm shall deliver to ICN all Quarterly and Annual Financial Statements of each Ribapharm Affiliate (which (a) Ribapharm consolidates for financial accounting purposes and (b) is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available) with such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of Ribapharm required to be delivered to ICN pursuant to this Section 5.1.
(vii) Ribapharm shall, and shall cause each Ribapharm Affiliate which files information with the SEC, to deliver to ICN: (A) as soon as the same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or made
(viii) With reasonable promptness, Ribapharm shall deliver to ICN such additional financial and other information and data with respect to Ribapharm and its Subsidiaries and their business, properties, financial positions, results of operations and prospects as from time to time may be reasonably requested by ICN.
(ix) ICN agrees to provide to Ribapharm all information relating to ICN or any ICN Affiliate that Ribapharm reasonably requests in connection with any Ribapharm Public Filings or that, in the judgment of Ribapharm's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. ICN agrees that such information shall be provided by ICN in a timely manner on the dates reasonably requested by Ribapharm (which may be earlier than the dates on which ICN otherwise would be required hereunder to have such information available) to enable Ribapharm to prepare, print and release all Ribapharm Public Filings on such dates as Ribapharm shall determine. If and to the extent reasonably requested by Ribapharm, ICN agrees that it shall diligently and promptly review all drafts of such Ribapharm Public Filings and prepare in a diligent and timely fashion any portion of such Ribapharm Public Filing pertaining to ICN or any ICN Affiliate.
(x) Ribapharm shall authorize Ribapharm's Auditors to make available to ICN's Auditors both the personnel who performed or are performing the annual audit of Ribapharm and work papers related to the annual audit of Ribapharm, in all cases within a reasonable time prior to the date of Ribapharm's Auditors' opinion on Ribapharm's audited financial statements, so that ICN's Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Ribapharm's Auditors as it relates to ICN's Auditors' report on ICN's statements, all within sufficient time to enable ICN to meet its timetable for the printing, filing and public dissemination of the ICN Annual Statements.
(xi) Ribapharm shall provide ICN's internal auditors access to Ribapharm's and its Subsidiaries, books and records so that ICN may conduct reasonable audits relating to the
(xii) Ribapharm shall give ICN as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the date hereof. Ribapharm will consult with ICN and, if requested by ICN, Ribapharm will consult with ICN's independent public accountants with respect thereto.
(xiii) Ribapharm shall, and shall cause each Ribapharm Affiliate to, maintain a system of internal accounting controls that will provide reasonable assurance that (A) Ribapharm's and such Ribapharm Affiliate's books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(xiv) Ribapharm shall cooperate fully, and cause its accountants to cooperate, with ICN to the extent reasonably requested by ICN in the preparation of ICN's public earnings releases, Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by ICN with the SEC, any national securities exchange or otherwise made publicly available (collectively, "ICN Public Filings"). Ribapharm agrees to provide to ICN all information relating to Ribapharm or any Ribapharm Affiliate that ICN reasonably requests in connection with any ICN Public Filings or that, in the judgment of ICN's legal staff, is required to be disclosed or incorporated by reference therein under any law, rule or regulation. Such information shall be provided by Ribapharm in a timely manner on the dates reasonably requested by ICN (which may be earlier than the dates on which Ribapharm otherwise would be required hereunder to have such information available) to enable ICN to prepare, print and release all ICN Public Filings on such dates as ICN shall determine. Ribapharm shall cause its accountants to consent to any reference to them as experts in any ICN Public Filings required under any law, rule or regulation. If and to the extent reasonably requested by ICN, Ribapharm shall diligently and promptly review all drafts of such ICN Public Filings and prepare in a diligent and timely fashion any portion of such ICN Public Filing pertaining to Ribapharm or any Ribapharm Affiliate. Prior to any printing or public release of any ICN Public Filing, an appropriate executive officer of Ribapharm shall, if requested by ICN, certify that the information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business in such ICN Public Filing is accurate, true and correct in all material respects. Unless required by law, rule or regulation, Ribapharm shall not publicly release any financial or other information which conflicts with the information with respect to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business that is included in any ICN Public Filing without ICN's prior written consent. Prior to the release or filing thereof, ICN shall provide Ribapharm with a draft of any portion of a ICN Public Filing containing information relating to Ribapharm, any Ribapharm Affiliate or the Ribapharm Business and shall give Ribapharm an opportunity to review such information and comment thereon; provided that ICN shall determine in its sole discretion the final form and content of all ICN Public Filings.
Appears in 1 contract
Samples: Affiliation and Distribution Agreement (Ribapharm Inc)
