Common use of SEC Financial Statements Clause in Contracts

SEC Financial Statements. (a) Seller shall obtain and deliver to Buyer by the date that is 70 days after the Closing, (i) audited financial statements for the Business for the year ended December 31, 2016 (the “Audited Financial Statements”), and (ii) unaudited year-to-date financial statements for the most recently completed quarterly period prior to Closing (the “Unaudited Financial Statements” and, together with the Audited Financial Statements, the “Rule 3-05 Financial Statements”). Seller shall reasonably cooperate with Buyer regarding other financial information relating to the Business that may be required in connection with any filing with the Securities and Exchange Commission (the “SEC”) by Buyer after the Closing. (b) The Rule 3-05 Financial Statements will be (i) prepared in accordance with the books and records of the Business, (ii) prepared in accordance with Regulation S-X and United States generally accepted accounting principles (“GAAP”), (iii) prepared as either (x) carve-out financial statements or (y) abbreviated financial statements to the extent Buyer requests and receives pre-clearance from the SEC to use such abbreviated financial statements in any reports and registration statements of Buyer and (iv) in the case of the Audited Financial Statements, accompanied by an opinion (the “Audit Opinion”) of Ernst & Young LLP (the “Independent Auditor”), which opinion complies with Regulation S-X. Seller agrees to provide Buyer with an opportunity to review and comment on drafts of the Rule 3-05 Financial Statements, the form and substance of which shall be reasonably acceptable to Buyer, and with reasonable access to the books, records and personnel of the Business and Seller and all documents, schedules and work papers that are reasonably necessary for purposes of such review. (c) To the extent Buyer is required to file the Rule 3-05 Financial Statements with the SEC under applicable Requirements of Law, then (i) Buyer will use its commercially reasonable efforts to request pre-clearance from the SEC to file the Rule 3-05 Financial Statements in the form of abbreviated financial statements rather than carve-out financial statements and (ii) Seller will use its commercially reasonable efforts to cause the Independent Auditor to provide to Buyer no later than five business days prior to the required filing date of the Rule 3-05 Financial Statements the consents necessary to permit the inclusion of the Audit Opinion with respect to the Audited Financial Statements in any reports and registration statements of Buyer. (d) Whether or not Buyer is ultimately required to file the Rule 3-05 Financial Statements with the SEC under applicable Requirements of Law, Buyer shall reimburse Seller within 30 days of receipt of detailed invoices for all reasonable internal and out-of-pocket costs, fees and expenses incurred by Seller in connection with the preparation of the Rule 3-05 Financial Statements and the Audit Opinion, including any such costs, fees and expenses paid or payable to third party consultants (in each case, without markup and on a pass-through basis); provided, however, that Buyer shall have no obligation to reimburse Seller hereunder if the Rule 3-05 Financial Statements are not delivered to Buyer on or before the date that is 70 days after the Closing.

SEC Financial Statements. (a) Seller shall obtain and deliver If Genzyme determines in good faith after consultation with Genzyme’s independent auditor that based on the information set forth in the 2008 Financial Statements, Genzyme would be required to Buyer by file with the date that is 70 days after the Closing, (i) SEC pursuant to Rule 3-05 of Regulation S-X audited annual financial statements for of the Bayer Business for the year ended December 31, 2016 (the “Audited Financial Statements”), and (ii) and/or unaudited year-to-date quarterly financial statements for of the most recently completed quarterly period prior to Closing Bayer Business (the “Unaudited Financial Statements” and, ”) for the periods [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. specified by Rule 3-05 of Regulation S-X (any Audited Financial Statements together with the Audited any Unaudited Financial Statements, the “Rule 3-05 SEC Financial Statements”), Bayer will deliver to Genzyme as soon as reasonably practicable the SEC Financial Statements. Seller shall reasonably cooperate with Buyer regarding other financial information relating to the Business that may be required in connection with any filing with the Securities and Exchange Commission (the “SEC”) by Buyer after the Closing. (b) The Rule 3-05 SEC Financial Statements will be (ia) prepared in accordance with the books and records of the Bayer Business, (iib) prepared in accordance with Regulation S-X and United States generally accepted accounting principles (“GAAP”), (iii) prepared as either (x) carve-out financial statements or (y) abbreviated financial statements to the extent Buyer requests and receives pre-clearance from unless IFRS is acceptable for Genzyme’s filing of the SEC to use such abbreviated financial statements Financial Statements with the SEC, in any reports and registration statements of Buyer which case the SEC Financial Statements will be prepared in accordance with IFRS and (ivc) in the case of the Audited Financial Statements, accompanied by an opinion (the “Audit Opinion”) of PricewaterhouseCoopers LLP, Deloitte Touche Tohmatsu LLP, KPMG, LLP or Ernst & Young LLP (the “Independent Auditor”), which opinion complies with Regulation S-X. Seller agrees to provide Buyer with an opportunity to review and comment on drafts of the Rule 3-05 Financial Statements, the form and substance of which shall be reasonably acceptable to Buyer, and with reasonable access to the books, records and personnel of the Business and Seller and all documents, schedules and work papers that are reasonably necessary for purposes of such review. (c) To the extent Buyer is required to file the Rule 3-05 Financial Statements with the SEC under applicable Requirements of Law, then (i) Buyer will use its commercially reasonable efforts to request pre-clearance from the SEC to file the Rule 3-05 Financial Statements in the form of abbreviated financial statements rather than carve-out financial statements and (ii) Seller Bayer will use its commercially reasonable efforts to cause the Independent Auditor to provide to Buyer Genzyme the consents requested by Genzyme no later than five business days [**] Business Days prior to the required filing date of Closing (the Rule 3-05 Financial Statements the consents necessary “Auditor Consents”) to permit the inclusion of the Audit Opinion with respect to the Audited Financial Statements in any Genzyme’s reports and registration statements of Buyer. (d) Whether or not Buyer is ultimately required to file the Rule 3-05 Financial Statements filed with the SEC for periods required under applicable Requirements Legal Requirements. Genzyme will reimburse Bayer for Bayer’s reasonable costs (which will include the cost of Law, Buyer shall reimburse Seller within 30 days of receipt of any external support Bayer may utilize to assist or prepare the SEC Financial Statements) incurred by Bayer supported by reasonable documentation for Bayer’s activities pursuant to this Section 8.13.3. Reasonable supporting documentation for this purpose does not require Bayer to provide detailed invoices time sheets for all reasonable internal and out-of-pocket costs, fees and expenses incurred by Seller in connection with but does require a reasonable break-down of internal costs such that Genzyme may generally substantiate the preparation of the Rule 3-05 Financial Statements and the Audit Opinion, including any such costs, fees and expenses paid or payable to third party consultants (in each case, without markup and on a pass-through basis); provided, however, that Buyer shall have no obligation to reimburse Seller hereunder if the Rule 3-05 Financial Statements are not delivered to Buyer on or before the date that is 70 days after the Closinginternal costs for which Bayer seeks reimbursement hereunder.