SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO CAUSE SUCH PERSON TO PROMPTLY TRANSFER SUCH
ASSET, PROPERTY OR RIGHT TO A SELLER, AND UPON SUCH TRANSFER SUCH ASSET,
PROPERTY OR RIGHT SHALL BE DEEMED TO BE A PURCHASED ASSET UNDER THIS AGREEMENT.
SECTION 5.5
ACCESS TO INFORMATION/CONFIDENTIALITY/PRESERVATION OF
BOOKS AND RECORDS.
-36-
(A)
FROM THE DATE HEREOF UNTIL THE EARLIER OF (I) TERMINATION OF
THIS AGREEMENT AND (II) THE CLOSING, THE PURCHASERS SHALL BE ENTITLED, THROUGH
THEIR REPRESENTATIVES (INCLUDING THEIR LEGAL ADVISORS AND ACCOUNTANTS), TO MAKE
SUCH INVESTIGATION OF THE SPHERIS ENTITIES, THE PURCHASED ASSETS AND THE ASSUMED
LIABILITIES AND SUCH EXAMINATION OF THE BOOKS AND RECORDS AS THEY REASONABLY
REQUEST AND TO MAKE EXTRACTS AND COPIES OF SUCH BOOKS AND RECORDS (WHICH SHALL
INCLUDE, WITHOUT LIMITATION, MAKING AVAILABLE TO PURCHASERS MONTHLY FINANCIAL
STATEMENTS OF THE SELLERS PREPARED BY SELLERS IN THE ORDINARY COURSE OF SELLERS'
BUSINESS OR IN CONNECTION WITH THE SELLER CHAPTER 11 CASES AS SOON AS REASONABLY
PRACTICABLE (AND IN ANY EVENT WITHIN TWO (2) BUSINESS DAYS) OF THE PREPARATION
THEREOF).
SUBJECT TO THE FOLLOWING SENTENCE, (I) THE SELLERS SHALL USE THEIR
COMMERCIALLY REASONABLE EFFORTS TO CAUSE THEIR REPRESENTATIVES TO COOPERATE WITH
PURCHASERS AND THEIR REPRESENTATIVES IN CONNECTION WITH SUCH INVESTIGATION AND
EXAMINATION, (II) THE SELLERS SHALL MAKE AVAILABLE TO PURCHASERS SELLERS'
ACCOUNTING PERSONNEL AND USE COMMERCIALLY REASONABLE EFFORTS TO MAKE SELLERS'
OUTSIDE ACCOUNTANTS AVAILABLE TO PURCHASERS IN CONNECTION WITH PURCHASERS'
PREPARATION OF FINANCIAL STATEMENTS THAT PURCHASER WILL BE REQUIRED TO FILE
AFTER THE CLOSING DATE UNDER APPLICABLE LAW (INCLUDING FINANCIAL STATEMENTS FOR
THE YEAR ENDED DECEMBER 31, 2009) AND (III) SELLERS SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO COOPERATE WITH PURCHASERS SO THAT THE SPHERIS INDIA
PAYABLES ARE ASSUMED AT CLOSING AS CONTEMPLATED BY SECTIONS 2.3(B) AND 2.6(F) OF
THIS AGREEMENT.
PURCHASERS SHALL (I) REIMBURSE SELLERS FOR REASONABLE
OUT-OF-POCKET COSTS INCURRED BY SELLERS TO COMPLY WITH THE PRECEDING SENTENCE
AND (II) INDEMNIFY SELLERS FOR ANY LOSS RESULTING FROM SELLERS' COMPLIANCE WITH
SUCH PRECEDING SENTENCE.
ANY SUCH INVESTIGATION AND EXAMINATION SHALL BE
CONDUCTED DURING REGULAR BUSINESS HOURS UPON REASONABLE ADVANCE NOTICE IN A
MANNER THAT MINIMIZES DISRUPTION TO THE BUSINESS, OPERATIONS AND ACTIVITIES OF
THE SELLERS.
IN CONNECTION WITH THE PURCHASERS' ACCESS TO THE BOOKS AND
RECORDS, THE PURCHASERS SHALL BE ACCOMPANIED AT ALL TIMES BY A REPRESENTATIVE OF
THE SELLERS UNLESS THE SELLERS OTHERWISE AGREE, SHALL NOT MATERIALLY INTERFERE
WITH THE USE AND OPERATION OF THE OFFICES AND OTHER FACILITIES OF THE SELLERS,
AND SHALL COMPLY WITH ALL REASONABLE SAFETY AND SECURITY RULES AND REGULATIONS
FOR SUCH OFFICES AND OTHER FACILITIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, (X) THE SELLERS SHALL BE ENTITLED TO WITHHOLD ACCESS TO, OR
EXAMINATION OF, ANY INFORMATION THAT THEY DETERMINE (I) INCLUDES TRADE SECRETS
OR OTHER PROPRIETARY INFORMATION, (II) IS PROTECTED BY ATTORNEY-CLIENT,
WORK-PRODUCT, OR SIMILAR PRIVILEGE OR DOCTRINE, (III) CUSTOMER NAMES, OTHER
INFORMATION THAT COULD IDENTIFY CUSTOMERS AND CUSTOMER PRICING INFORMATION
AND/OR (IV) THE DISCLOSURE OF WHICH IS PROHIBITED PURSUANT APPLICABLE LAW AND
(Y) THE SELLERS SHALL AS SOON AS REASONABLY