SYSTEM, UNTIL THE EXPIRATION OF THE MCE PERIOD), SUBJECT TO
APPLICABLE LAWS, SELLER SHALL (I) AFFORD BUYER AND ITS AUTHORIZED
REPRESENTATIVES REASONABLE ACCESS, DURING REGULAR BUSINESS HOURS, UPON
REASONABLE ADVANCE NOTICE, TO THE EMPLOYEES, EACH SPECIFIED BUSINESS, THE
FRIENDCO BUSINESS, ASSETS THAT WILL BE TRANSFERRED ASSETS AS OF THE CLOSING AND
THE FRIENDCO TRANSFERRED ASSETS, (II) FURNISH, OR CAUSE TO BE FURNISHED, TO
BUYER ANY FINANCIAL AND OPERATING DATA AND OTHER INFORMATION WITH RESPECT TO
EACH SPECIFIED BUSINESS OR IN FURTHERANCE OF THE TRANSACTION OR THE EXCHANGE AS
BUYER FROM TIME TO TIME REASONABLY REQUESTS, INCLUDING, SUBJECT TO SECTION 5.11,
BY PROVIDING TO BUYER OR ITS ACCOUNTANTS SUFFICIENT INFORMATION (A) FOR THE
PREPARATION OF THE PRO-FORMA BALANCE SHEET AND STATEMENTS OF INCOME,
STOCKHOLDERS' EQUITY AND CASH FLOWS FOR THE PARENT BUSINESS (IN EACH CASE, IF
REQUESTED, ASSUMING THE FRIENDCO TRANSACTION AND/OR THE EXCHANGE HAVE OCCURRED)
AND (B) REGARDING COMPLIANCE BY SELLER AND ITS AFFILIATES WITH THE REQUIREMENTS
OF THE SOA WITH RESPECT TO THE BUSINESS, AND (III) INSTRUCT THE EMPLOYEES, AND
ITS COUNSEL AND FINANCIAL ADVISORS TO COOPERATE WITH BUYER IN ITS INVESTIGATION
OF EACH SPECIFIED BUSINESS AND THE FRIENDCO BUSINESS, INCLUDING INSTRUCTING ITS
ACCOUNTANTS TO GIVE BUYER ACCESS TO THEIR WORK PAPERS; PROVIDED, HOWEVER, THAT
IN NO EVENT SHALL BUYER HAVE ACCESS TO ANY INFORMATION THAT, BASED ON ADVICE OF
SELLER'S COUNSEL, WOULD (A) REASONABLY BE EXPECTED TO CREATE LIABILITY UNDER
APPLICABLE LAWS, INCLUDING U.S. ANTITRUST LAWS, OR WAIVE ANY MATERIAL LEGAL
PRIVILEGE (PROVIDED, THAT IN SUCH LATTER EVENT BUYER AND SELLER SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO COOPERATE TO PERMIT DISCLOSURE OF SUCH
INFORMATION IN A MANNER CONSISTENT WITH THE PRESERVATION OF SUCH LEGAL
PRIVILEGE), (B) RESULT IN THE DISCLOSURE OF ANY TRADE SECRETS OF THIRD PARTIES
OR (C) VIOLATE ANY OBLIGATION OF SELLER WITH RESPECT TO CONFIDENTIALITY SO LONG
AS, WITH RESPECT TO CONFIDENTIALITY, TO THE EXTENT SPECIFICALLY REQUESTED BY
BUYER, SELLER HAS MADE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN A WAIVER
REGARDING THE POSSIBLE DISCLOSURE FROM THE THIRD PARTY TO WHOM IT OWES AN
OBLIGATION OF CONFIDENTIALITY; IT BEING UNDERSTOOD THAT BUYER SHALL NOT CONDUCT
ANY ENVIRONMENTAL SAMPLING WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER, WHICH
CONSENT MAY BE WITHHELD IN SELLER'S REASONABLE DISCRETION. ALL REQUESTS MADE
PURSUANT TO THIS SECTION 5.1(A) SHALL BE DIRECTED TO AN EXECUTIVE OFFICER OF
SELLER OR SUCH PERSON OR PERSONS AS MAY BE DESIGNATED BY SELLER. ALL INFORMATION
RECEIVED PURSUANT TO THIS SECTION 5.1(A) SHALL, PRIOR TO THE CLOSING, BE
GOVERNED BY THE TERMS OF THE SELLER CONFIDENTIALITY AGREEMENT. NO INFORMATION OR
KNOWLEDGE OBTAINED IN ANY
88
investigation by Buyer pursuant to this Section 5.1(a) shall affect or be deemed
to modify any representation or warranty made by Seller hereunder.
(B)
FROM THE DATE HEREOF UNTIL THE CLOSING, SUBJECT TO APPLICABLE
LAWS, BUYER SHALL, AND SHALL CAUSE PARENT AND ITS CONTROLLED AFFILIATES TO,
(I) AFFORD SELLER AND ITS AUTHORIZED REPRESENTATIVES REASONABLE ACCESS, DURING
REGULAR BUSINESS HOURS AND UPON REASONABLE ADVANCE NOTICE, TO THE PARENT
BUSINESS, (II) FURNISH, OR CAUSE TO