SEC with respect to the
Registration Statement and of any requests by the SEC for any amendment or
supplement thereto or for additional information and shall provide to Target
copies of all correspondence between Acquiror or any representative of Acquiror
and the SEC.
Acquiror shall give Target and its counsel the opportunity to
review the Registration Statement prior to its being filed with the SEC and
shall give Target and its counsel the opportunity to review all amendments and
supplements to the Registration Statement and all responses to requests for
additional information and replies to comments prior to their being filed with,
or sent to, the SEC.
Target shall use its commercially reasonable efforts to
obtain the completed accredited investor questionnaires from the Target
Stockholders prior to the Closing Date.
Target agrees to furnish a copy of the
offering circular or other such offering document prepared by Acquiror to the
Target Stockholders, the distribution of which shall be at Target's expense, at
the time Target distributes notice of the Target Stockholders Meeting to the
Target Stockholders.
7.03.
ACCESS TO INFORMATION; CONFIDENTIALITY.
(A)
UPON REASONABLE NOTICE AND SUBJECT TO APPLICABLE LAWS RELATING TO
THE EXCHANGE OF INFORMATION, TARGET SHALL, AND SHALL CAUSE EACH OF THE TARGET
SUBSIDIARIES TO, AFFORD TO THE OFFICERS, EMPLOYEES, ACCOUNTANTS, COUNSEL AND
OTHER REPRESENTATIVES OF ACQUIROR, REASONABLE ACCESS DURING NORMAL BUSINESS
HOURS DURING THE PERIOD PRIOR TO THE EFFECTIVE TIME, TO ALL ITS PROPERTIES,
BOOKS, CONTRACTS, COMMITMENTS, RECORDS, OFFICERS, EMPLOYEES, ACCOUNTANTS,
COUNSEL AND OTHER REPRESENTATIVES AND, DURING SUCH PERIOD, TARGET SHALL, AND
SHALL CAUSE THE TARGET SUBSIDIARIES TO, MAKE AVAILABLE TO ACQUIROR INFORMATION
CONCERNING THE TARGET PROPERTIES AND TARGET PERSONNEL AS ACQUIROR MAY REASONABLY
REQUEST.
NEITHER TARGET NOR ANY OF THE TARGET SUBSIDIARIES SHALL BE REQUIRED TO
PROVIDE ACCESS TO OR DISCLOSE INFORMATION WHERE SUCH ACCESS OR DISCLOSURE WOULD
VIOLATE OR PREJUDICE THE RIGHTS OF TARGET'S CUSTOMERS, JEOPARDIZE
ATTORNEY-CLIENT PRIVILEGE OR CONTRAVENE ANY LAW, FIDUCIARY DUTY OR BINDING
AGREEMENT ENTERED INTO PRIOR TO THE DATE OF THIS AGREEMENT.
ACQUIROR SHALL, AND
CAUSE ITS REPRESENTATIVES TO, TAKE ALL REASONABLE EFFORTS TO PREVENT SUCH ACCESS
AND INSPECTION FROM INTERFERING WITH THE BUSINESS OPERATIONS OF TARGET AND THE
TARGET SUBSIDIARIES.
(b)
All information obtained by Acquiror pursuant to this Section 7.03
shall be kept confidential in accordance with the confidentiality agreement,
dated June 7, 2006 (the "Confidentiality Agreement"), between Acquiror and
Target.
(c)
After the Effective Time, Acquiror shall afford to the officers,
employees, accountants, counsel and other representatives of the Liquidating
Trust access during normal business hours to the books and records of the Target
Properties as may reasonably be requested.
46
7.04.
NO-SHOP CLAUSE.
(A)
FROM AND AFTER THE DATE OF THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BY TARGET UNTIL THE TERMINATION OF THIS AGREEMENT OR THE CONSUMMATION
OF THE TRANSACTION, THE TARGET GROUP WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT
OF ACQUIROR OR EXCEPT AS OTHERWISE PERMITTED BY THIS AGREEMENT DIRECTLY OR
INDIRECTLY: (I) SELL, ASSIGN, LEASE, PLEDGE OR OTHERWISE TRANSFER OR DISPOSE OF,
DIRECTLY