Common use of Books and Records; Access; Assistance Clause in Contracts

Books and Records; Access; Assistance. (a) For a period of six (6) years after the Closing Date, Parent and Purchaser shall preserve and retain all accounting, legal, auditing and other books and records (including any documents relating to any Proceedings arising out of or with respect to the operation or conduct of the Business, regardless of whether such Proceeding is initiated before or after the Closing) over which it has control to the extent relating to the conduct of the Business prior to the Closing Date (which shall include, for the avoidance doubt, all facts and circumstances occurring or existing prior to the Closing that may give rise to a Claim by any Person, even if such Claim is not made until after the Closing). Notwithstanding the foregoing, during such six-year period, either party may dispose of any such books and records which are offered to, but not accepted by, the other party. (b) From and after the Closing, if, in order to properly prepare documents required to be filed with Governmental Bodies (including Tax Authorities and the SEC) or its financial statements, or for any other reasonable business purpose, it is necessary that Parent or a Seller (or its Subsidiaries or successors), on the one hand, or Purchaser (or its Subsidiaries or successors), on the other hand, be furnished with additional information of the type described in Section 8.3(a) above, and such information is in the possession of the other party, such other party agrees to use its commercially reasonable efforts to furnish such information to the party that requires such information, at the cost and expense of the party being furnished such information. (c) In the event of, and for so long as any party hereto (or its Affiliates) is prosecuting, participating in, contesting or defending any Proceeding, whenever filed or made, in connection with or involving (i) any transaction contemplated under this Agreement or (ii) the conduct or operation of the Business (including the German Business) prior to the Closing or the conduct or operation of the Excluded Businesses (or the Retained German Contracts) prior to or after the Closing, the other party hereto shall, and shall cause its respective Affiliates to, (A) cooperate with it and its counsel in, and assist it and its counsel with, the contest or defense, (B) make available its personnel (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses), and (C) provide such information, testimony and documents, including, but not limited to, books and records, contracts, and commitments of the Business, whether stored in paper, electronic, or other format, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense (not including employee compensation and benefits costs) of the prosecuting, participating, contesting or defending party (unless such party is entitled to indemnification therefor under ARTICLE IX or ARTICLE XIII). For the avoidance of doubt, this Section 8.3(c) shall not apply with respect to disputes between Parent, a Seller, Purchaser or any of their Affiliates. The covenants in this Section 8.3(c) shall not be deemed to limit the access and cooperation to be provided to Sellers by the Purchaser pursuant to Section 8.2, 8.3(a) or 8.3(b). (d) At least twenty (20) days prior to Closing, Sellers and their Subsidiaries shall cause the Financial Statements and the Subsequent Financial Statements to be delivered to Purchaser. Prior to the Closing, Sellers and their Subsidiaries shall also prepare and deliver unaudited financial statements, for the period between September 28, 2007 and the last fiscal quarter that ended at least forty-five (45) days prior to the Closing Date. The September 28, 2007 audited financial Statements shall include an audit report from Deloitte & Touche that is no more qualified than the audit report for the September 29, 2006 audited financial statements previously provided to Purchaser. All such financial statements shall be prepared in accordance with GAAP and Regulations S-X of the SEC. Prior to and after the Closing, Sellers shall request, and take all reasonable steps necessary to encourage, the auditors of such financial statements to cooperate with the Purchaser and provide all necessary consents required by the SEC and customary “comfort letters” in connection with securities offerings of Purchaser, in each case at Purchaser’s sole cost and expense.

Books and Records; Access; Assistance. (a) For Subject to Section 5.5, for a period of six (6) seven years after the Closing Date, Parent subject to their document retention policies and Purchaser procedures, Seller and Investor shall preserve and retain (or cause to be preserved and retained) all accounting, legal, auditing and other books and records (including any documents relating to any Proceedings arising out of or with respect to the operation or conduct of the Business, regardless Business or the business of whether such Proceeding is initiated before or after the ClosingCompany and the Company Subsidiaries) over which it has control to the extent relating to the conduct of the Business prior to the Closing Date (which shall include, for the avoidance doubt, all facts and circumstances occurring or existing prior to the Closing that may give rise to a Claim by any Person, even if such Claim is not made until after the Closing)Date. Notwithstanding the foregoing, during such sixseven-year period, either any party (and its Affiliates) may dispose of any such books and records which are offered to, but not accepted by, the other party. (b) From and after the Closing, if, in order to properly prepare documents required to be filed with Governmental Bodies (including Tax Authorities and the SECAuthorities) or its financial statements, or for any other reasonable business purpose, it is necessary that Parent or a Seller (or its Subsidiaries Affiliates or its or their successors), on the one hand, or Purchaser Investor (or its Subsidiaries Affiliates or its or their successors), on the other hand, be furnished with additional information of the type described in Section 8.3(a4.4(a) above, and such information is in the possession of the other party, except as would, in such party’s reasonable discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Laws, fiduciary duty or Contract, such other party agrees to use its commercially reasonable efforts to furnish such information to the party that requires such informationinformation and provide reasonable access to any employees or other relevant personnel that may be reasonably required to be consulted with in connection with any such purpose, in each case, at the cost and expense of the party being furnished such informationinformation or access to such employees or personnel, as applicable. (c) In the event of, and for so long as any party hereto (or its Affiliates) is prosecuting, participating in, contesting or defending any Proceeding, whenever filed or made, Nothing in connection with or involving (i) any transaction contemplated under this Agreement or (ii) the conduct or operation of the Business (including the German Business) prior to the Closing or the conduct or operation of the Excluded Businesses (or the Retained German Contracts) prior to or after the Closing, the other party hereto shall, and shall cause its respective Affiliates to, (A) cooperate with it and its counsel in, and assist it and its counsel with, the contest or defense, (B) make available its personnel (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses), and (C) provide such information, testimony and documents, including, but not limited to, books and records, contracts, and commitments of the Business, whether stored in paper, electronic, or other format, during normal business hours and upon reasonable notice, in each case as Section 4.4 shall be reasonably necessary in connection with the contest deemed to modify or defense, all at the sole cost and expense (not including employee compensation and benefits costs) of the prosecuting, participating, contesting or defending party (unless such diminish any information rights to which a party is entitled to indemnification therefor under ARTICLE IX or ARTICLE XIII). For the avoidance of doubt, this Section 8.3(c) shall not apply with respect to disputes between Parent, a Seller, Purchaser or any of their Affiliates. The covenants in this Section 8.3(c) shall not be deemed to limit the access and cooperation to be provided to Sellers by the Purchaser pursuant to Section 8.2, 8.3(a) or 8.3(b)the Stockholders Agreement. (d) At least twenty (20) days prior to Closing, Sellers and their Subsidiaries shall cause the Financial Statements and the Subsequent Financial Statements to be delivered to Purchaser. Prior to the Closing, Sellers and their Subsidiaries shall also prepare and deliver unaudited financial statements, for the period between September 28, 2007 and the last fiscal quarter that ended at least forty-five (45) days prior to the Closing Date. The September 28, 2007 audited financial Statements shall include an audit report from Deloitte & Touche that is no more qualified than the audit report for the September 29, 2006 audited financial statements previously provided to Purchaser. All such financial statements shall be prepared in accordance with GAAP and Regulations S-X of the SEC. Prior to and after the Closing, Sellers shall request, and take all reasonable steps necessary to encourage, the auditors of such financial statements to cooperate with the Purchaser and provide all necessary consents required by the SEC and customary “comfort letters” in connection with securities offerings of Purchaser, in each case at Purchaser’s sole cost and expense.

Books and Records; Access; Assistance. (a) For a period of six Subject to Section 8.1(b), including limitations that are required to preserve any applicable attorney-client privilege, after the Closing, as applicable, Buyer and Seller shall and Seller shall cause its applicable Subsidiaries to make reasonably available to each other and their respective Affiliates and Representatives (6as reasonably requested) years and to any Taxing Authority or any other Governmental Authority, all books and records to the extent related to the Business, the Acquired Assets or the Assumed Liabilities for all periods prior to the Closing Date and shall use commercially reasonable efforts to preserve, for at least [***] after the Closing DateDate or, Parent if applicable and Purchaser shall preserve and retain later, the expiration of the applicable statutes of limitations or extensions thereof: (i) all accounting, legal, auditing and other such books and records records, (including any documents relating ii) Tax Returns solely pertaining to any Proceedings arising out of or with respect to the operation or conduct of the Business, regardless of whether such Proceeding is initiated before the Acquired Assets or after the ClosingProducts and (iii) over which it has control government Contract information, records or documents, to the extent relating to the conduct of Business, the Business prior Acquired Assets or the Assumed Liabilities; provided, that Seller and its respective Affiliates and Representatives shall only be entitled to access such books and records identified in clause (ii) to the extent necessary or useful in connection with any Tax or other Proceeding, including any Tax audit, by or before any Governmental Authority or to satisfy their respective Tax, accounting or financial reporting obligations for fiscal periods that precede or include the Closing Date (which shall includeeach, for the avoidance doubt, all facts and circumstances occurring or existing prior to the Closing that may give rise to a Claim by any Person, even if such Claim is not made until after the Closing“Permitted Access Purpose”). Notwithstanding the foregoing, during such six-year period, either party may dispose of any such books Buyer and records which are offered to, but not accepted by, the Seller shall also make available to each other party. (b) From and after the Closing, if, in order to properly prepare documents required to be filed with Governmental Bodies (including Tax Authorities and the SEC) or its financial statements, or for any other reasonable business purpose, it is necessary that Parent or a Seller (or its Subsidiaries or successors), on the one hand, or Purchaser (or its Subsidiaries or successors), on the other hand, be furnished with additional information of the type described in Section 8.3(a) above, and such information is in the possession case of the other partyaccess to Buyer’s personnel, solely for a Permitted Access Purpose) for such other party agrees to use its commercially reasonable efforts to furnish such information to the party that requires such information, at the cost and expense of the party being furnished such information. (c) In the event of, and for so long as any party hereto (or its Affiliates) is prosecuting, participating in, contesting or defending any Proceeding, whenever filed or made, in connection with or involving (i) any transaction contemplated under this Agreement or (ii) the conduct or operation of the Business (including the German Business) prior to the Closing or the conduct or operation of the Excluded Businesses (or the Retained German Contracts) prior to or after the Closing, the other party hereto shall, and shall cause its respective Affiliates to, (A) cooperate with it and its counsel in, and assist it and its counsel with, the contest or defense, (B) make available its personnel (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses), and (C) provide such information, testimony and documents, including, but not limited to, books and records, contracts, and commitments of the Business, whether stored in paper, electronic, or other formatperiod, during normal business hours and upon reasonable noticeadvanced request, in each case as personnel responsible for preparing or maintaining such information, records and documents; provided, that no such personnel access shall unreasonably disrupt the other Party’s normal business operations. The right to access provided by this Section 8.1 shall include the right to make copies of accessed documents; provided, that all such copies shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense (not including employee compensation and benefits costs) of the prosecutingrequesting Party. The Party providing access under this Section 8.1 shall have the right to reasonably redact all such documents. (b) Notwithstanding the foregoing, participatingthis Section 8.1 shall not provide Buyer or Seller (or Representatives of any thereof) any access rights to documents, contesting information or defending party personnel of the other Party (i) which access would violate any Laws or Contractual or other obligations regarding the confidentiality thereof (unless any such party violation could be and is entitled avoided by the recipient’s execution and delivery of an appropriate confidentiality agreement), (ii) with respect to indemnification therefor under ARTICLE IX individual performance or ARTICLE XIII). For evaluation records, medical histories or other personnel-related information, the disclosure of which would, in a Party’s good faith opinion, subject the Party or any of its Affiliates to risk of Liability, (iii) which access would or would be reasonably likely to waive any attorney-client, work product, or like privilege, or (iv) for the purpose of use in connection with potential or actual litigation, arbitration or mediation between Buyer or any Affiliate of Buyer, on the one hand, and Seller or any Affiliate of Seller, on the other hand (nor, for the avoidance of doubt, this Section 8.3(c) shall not apply with respect to disputes between Parent, a Seller, Purchaser Buyer or Seller or any of their Affiliates. The covenants in respective Affiliates have any right to use any document or information obtained from the other pursuant to this Section 8.3(c8.1 in any such Proceeding); provided, that in the case of the preceding clauses (i) through (iii), the Party that is requested to provide such access shall not be deemed use its commercially reasonable efforts to limit cause the access and cooperation documents or information that are subject to such restrictions or prohibitions to be provided in a manner that would not reasonably be expected to Sellers by the Purchaser pursuant to Section 8.2, 8.3(a) violate such restrictions or 8.3(b)prohibitions. (d) At least twenty (20) days prior to Closing, Sellers and their Subsidiaries shall cause the Financial Statements and the Subsequent Financial Statements to be delivered to Purchaser. Prior to the Closing, Sellers and their Subsidiaries shall also prepare and deliver unaudited financial statements, for the period between September 28, 2007 and the last fiscal quarter that ended at least forty-five (45) days prior to the Closing Date. The September 28, 2007 audited financial Statements shall include an audit report from Deloitte & Touche that is no more qualified than the audit report for the September 29, 2006 audited financial statements previously provided to Purchaser. All such financial statements shall be prepared in accordance with GAAP and Regulations S-X of the SEC. Prior to and after the Closing, Sellers shall request, and take all reasonable steps necessary to encourage, the auditors of such financial statements to cooperate with the Purchaser and provide all necessary consents required by the SEC and customary “comfort letters” in connection with securities offerings of Purchaser, in each case at Purchaser’s sole cost and expense.

Books and Records; Access; Assistance. (a) For a period of six Subject to Section 8.1(b), including limitations that are required to preserve any applicable attorney-client privilege, after the Closing, as applicable, Buyer and Seller shall and Seller shall cause its applicable Affiliates to make reasonably available to each other and their respective Affiliates and Representatives (6as reasonably requested) years and to any Taxing Authority or any other Governmental Authority, all books and records to the extent related to the Compound, the Acquired Assets or the Assumed Liabilities for all periods prior to the Closing Date and shall use commercially reasonable efforts to preserve, for at least [***] after the Closing DateDate or, Parent if applicable and Purchaser shall preserve and retain later, the expiration of the applicable statutes of limitations or extensions thereof: (i) all accounting, legal, auditing and other such books and records records, (including any documents relating to any Proceedings arising out of or with respect ii) Tax Returns solely pertaining to the operation research, development or conduct manufacture of the BusinessCompound, regardless of whether such Proceeding is initiated before the Acquired Assets or after the Closingany Products and (iii) over which it has control government Contract information, records or documents, to the extent relating to the conduct research, development or manufacture of the Business prior Compound, the Acquired Assets or the Assumed Liabilities; provided, that a Party and its Affiliates and Representatives shall only be entitled to the Closing Date (which shall include, for the avoidance doubt, all facts and circumstances occurring or existing prior to the Closing that may give rise to a Claim by any Person, even if such Claim is not made until after the Closing). Notwithstanding the foregoing, during such six-year period, either party may dispose of any access such books and records which are offered to, but not accepted by, the other party. identified in clause (bii) From and after the Closing, if, in order to properly prepare documents required to be filed with Governmental Bodies (including Tax Authorities and the SEC) or its financial statements, or for any other reasonable business purpose, it is necessary that Parent or a Seller (or its Subsidiaries or successors), on the one hand, or Purchaser (or its Subsidiaries or successors), on the other hand, be furnished with additional information of the type described in Section 8.3(a) above, and such information is in the possession of the other party, such other party agrees to use its commercially reasonable efforts to furnish such information to the party that requires such information, at the cost and expense of the party being furnished such information. (c) In the event of, and for so long as any party hereto (or its Affiliates) is prosecuting, participating in, contesting or defending any Proceeding, whenever filed or made, extent necessary in connection with any Tax or involving (i) other Proceeding, including any transaction contemplated under this Agreement Tax audit, by or (ii) the conduct before any Governmental Authority or operation of the Business (including the German Business) prior to the Closing satisfy their respective Tax, accounting or the conduct or operation of the Excluded Businesses (or the Retained German Contracts) prior to or after the Closing, the other party hereto shall, financial reporting obligations. Buyer and Seller shall cause its respective Affiliates to, (A) cooperate with it and its counsel in, and assist it and its counsel with, the contest or defense, (B) also make available its personnel (including to each other for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses), and (C) provide such information, testimony and documents, including, but not limited to, books and records, contracts, and commitments of the Business, whether stored in paper, electronic, or other formatperiod, during normal business hours and upon reasonable noticeadvanced request, in each case as personnel responsible for preparing or maintaining such information, records and documents; provided, that no such personnel access shall unreasonably disrupt the other Party’s normal business operations. The right to access provided by this Section 8.1 shall include the right to make copies of accessed documents; provided, that all such copies shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense (not including employee compensation and benefits costs) of the prosecutingrequesting Party. The Party providing access under this Section 8.1 shall have the right to reasonably redact all such documents. (b) Notwithstanding the foregoing, participatingthis Section 8.1 shall not provide Buyer or Seller (or their respective Representatives) any access rights to documents, contesting information or defending party personnel of the other Party (i) which access would violate any Laws or Contractual or other obligations regarding the confidentiality thereof (unless any such party violation could be and is entitled avoided by the recipient’s execution and delivery of an appropriate confidentiality agreement), (ii) which access would, in the opinion of outside legal counsel to indemnification therefor under ARTICLE IX the Party receiving such request, jeopardize any attorney-client, work product, or ARTICLE XIII). For like privilege, or (iii) for the purpose of use in connection with potential or actual litigation, arbitration or mediation between Buyer or any Affiliate of Buyer, on the one hand, and Seller or any Affiliate of Seller, on the other hand (nor, for the avoidance of doubt, this Section 8.3(c) shall not apply with respect to disputes between Parent, a Seller, Purchaser Buyer or Seller or any of their Affiliates. The covenants in respective Affiliates have any right to use any document or information obtained from the other pursuant to this Section 8.3(c8.1 in any such Proceeding); provided, that in the case of the preceding clauses (i) and (ii), the Party that is requested to provide such access shall not be deemed (x) give reasonable notice to limit the requesting Party of the fact that it is restricting or otherwise prohibiting access to any documents or information pursuant to this Section 8.1, (y) inform the requesting Party with sufficient detail of the reason for such restriction or prohibition and cooperation (z) use its commercially reasonable efforts to cause the documents or information that are subject to such restrictions or prohibitions to be provided in a manner that would not reasonably be expected to Sellers by the Purchaser pursuant to Section 8.2, 8.3(a) violate such restrictions or 8.3(b)prohibitions. (d) At least twenty (20) days prior to Closing, Sellers and their Subsidiaries shall cause the Financial Statements and the Subsequent Financial Statements to be delivered to Purchaser. Prior to the Closing, Sellers and their Subsidiaries shall also prepare and deliver unaudited financial statements, for the period between September 28, 2007 and the last fiscal quarter that ended at least forty-five (45) days prior to the Closing Date. The September 28, 2007 audited financial Statements shall include an audit report from Deloitte & Touche that is no more qualified than the audit report for the September 29, 2006 audited financial statements previously provided to Purchaser. All such financial statements shall be prepared in accordance with GAAP and Regulations S-X of the SEC. Prior to and after the Closing, Sellers shall request, and take all reasonable steps necessary to encourage, the auditors of such financial statements to cooperate with the Purchaser and provide all necessary consents required by the SEC and customary “comfort letters” in connection with securities offerings of Purchaser, in each case at Purchaser’s sole cost and expense.

Books and Records; Access; Assistance. (a) For Subject to Section 5.5, for a period of six seven (67) years after the Closing Date, Parent Seller and Purchaser shall preserve and retain (or cause to be preserved and retained) all accounting, legal, Tax, auditing and other books and records (including any documents relating to any Proceedings arising out of or with respect to the operation or conduct of the Business, regardless business of whether such Proceeding is initiated before the Company or after the ClosingCompany Subsidiaries) over which it has control to the extent relating to the conduct of the Business business of the Company or Company Subsidiaries prior to the Closing Date (which shall include, for the avoidance doubt, all facts and circumstances occurring or existing prior to the Closing that may give rise to a Claim by any Person, even if such Claim is not made until after the Closing)Date. Notwithstanding the foregoing, during such sixseven-year period, either any party (and its Affiliates) may dispose of any such books and records which are offered to, but not accepted by, the other party. (b) From and after the Closing, if, in order to properly prepare documents required to be filed with Governmental Bodies (including Tax Authorities and the SECAuthorities) or its financial statements, or (subject to paragraph (c) below) for any other reasonable business purpose, it is necessary that Parent or a Seller (or its Subsidiaries Affiliates or its or their successors), on the one hand, or Purchaser (or its Subsidiaries Affiliates or its or their successors), on the other hand, be furnished with additional information of the type described in Section 8.3(a4.4(a) above, and such information is in the possession of the other party, such other party agrees to use its commercially reasonable efforts to furnish such information to the party that requires such informationinformation and provide reasonable access to any employees or other relevant personnel that may be reasonably required to be consulted with in connection with any such purpose, in each case, (i) to the extent provision of such information or access does not unreasonably interfere with the operations of the party (or its Affiliates or its or their successors) providing the same; and (ii) at the cost and expense of the party being furnished such informationinformation or access to such employees or personnel, as applicable. (c) In the event of, and for so long as any party hereto (or its Affiliates) is prosecuting, participating in, contesting or defending against any Proceeding, whenever filed or made, in connection with or involving (i) any transaction contemplated under this Agreement and the Ancillary Agreements or (ii) the conduct or operation of the Business (including business of the German Business) Company or the Company Subsidiaries prior to the Closing or the conduct or operation of the Excluded Businesses (or the Retained German Contracts) prior to or after the Closing, the other party parties hereto shall, and shall cause its their respective Affiliates to, (A) cooperate with it and its counsel in, and assist it and its counsel with, the contest or defensedefense (and in connection therewith, enter into a joint defense or similar cooperation agreement to the extent reasonably requested), (B) make available its personnel (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses), ) and (C) provide such information, testimony and documents, including, but not limited to, access to its books and records, contracts, and commitments of the Business, whether stored in paper, electronic, or other format, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense (not including employee compensation and benefits costs) of the prosecuting, participating, contesting or defending party (unless such party is entitled to indemnification therefor under ARTICLE IX Section 4.11 or ARTICLE XIIIIX). For the avoidance of doubt, this Section 8.3(c4.4(c) shall not apply with respect to disputes between ParentSeller or any of its Affiliates, a Selleron the one hand, and Purchaser or any of their its Affiliates, on the other hand. The covenants in this Section 8.3(c4.4(c) shall not be deemed to limit the access and cooperation to be provided to Sellers Seller by the Purchaser pursuant to Section 8.24.3, 8.3(a4.4(a) or 8.3(b4.4(b). (d) At least twenty (20) days prior to Closing, Sellers and their Subsidiaries shall cause the Financial Statements and the Subsequent Financial Statements to be delivered to Purchaser. Prior to the Closing, Sellers and their Subsidiaries shall also prepare and deliver unaudited financial statements, for the period between September 28, 2007 and the last fiscal quarter that ended at least forty-five (45) days prior to the Closing Date. The September 28, 2007 audited financial Statements shall include an audit report from Deloitte & Touche that is no more qualified than the audit report for the September 29, 2006 audited financial statements previously provided to Purchaser. All such financial statements shall be prepared in accordance with GAAP and Regulations S-X of the SEC. Prior to and after the Closing, Sellers shall request, and take all reasonable steps necessary to encourage, the auditors of such financial statements to cooperate with the Purchaser and provide all necessary consents required by the SEC and customary “comfort letters” in connection with securities offerings of Purchaser, in each case at Purchaser’s sole cost and expense.