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This excerpt taken from the AFFX 8-K filed Dec 20, 2007. CLOSING MATTERS
Section 3.1 Closing. Upon the terms and subject to the conditions of this Agreement, the closing of the transactions set forth in this Agreement (the “Closing”) will take place beginning at 9:00 a.m. Eastern Standard Time at the offices of Walter & Haverfield LLP, The Tower at Erieview, 1301 E. Ninth Street, Suite 3500, Cleveland, Ohio, on the first Business Day after satisfaction or waiver of all conditions described in Article VII that are required to be satisfied prior to the Closing, or at any other time, date, and place as the parties may agree (the “Closing Date”).
Section 3.2 Closing Deliveries.
(a) Deliveries of the Shareholders. At the Closing, each Shareholder will deliver or cause to be delivered to Parent the following:
(i) certificates representing the Shares;
(ii) executed counterparts of the Escrow Agreement; and
(iii) other duly executed documents, instruments and certificates required to be delivered by the Shareholders pursuant to the terms of this Agreement, including the documents required to be delivered pursuant to Section 7.2.
(b) Deliveries by the Company. At the Closing, the Company will deliver to Parent the following:
(i) certificates of good standing, dated not more than fifteen (15) days prior to the Closing Date, from the State of Ohio, and any other state where the nature of the Company’s activities and the failure to qualify would have a Company Material Adverse Effect;
(ii) a legal opinion of Walter & Haverfield LLP, Shareholders’ and the Company’s counsel, addressed to Parent opining on the matters set forth in Exhibit 3.2(b)(ii);
(iii) a certificate of an officer of the Company certifying the matters set forth in Exhibit 3.2(b)(iii); and
(iv) other duly executed documents, instruments and certificates required to be delivered by the Company pursuant to the terms of this Agreement, including the documents required to be delivered pursuant to Section 7.2.
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(c) Deliveries by Parent and Merger Subsidiary. At the Closing, Parent and Merger Subsidiary will deliver the following:
(i) payment of the Total Consideration as provided herein;
(ii) certificate of good standing or existence of Merger Subsidiary from the State of Delaware which will be dated not more than fifteen (15) days prior to the Closing Date;
(iii) executed counterparts of the Escrow Agreement; and
(iv) other duly executed documents, instruments and certificates required to be delivered by Parent pursuant to the terms of this Agreement, including the documents required to be delivered pursuant to Section 7.3.
Section 3.3 Further Assurances and Cooperation.
(a) Further Assurances. Subject to the terms and conditions of this Agreement, at any time and from time to time after the Closing, at a party’s reasonable request, the other party will execute and deliver such other instruments of sale, transfer, conveyance, assignment and confirmation, and assumption, and provide such materials and information and take such other actions as the other party may reasonably deem necessary or desirable in order to more effectively consummate the transactions contemplated by this Agreement.
(b) Access to Books and Records.
(i) After the Closing, Parent will afford the Shareholders, their respective counsel and accountants, during normal business hours, reasonable access to, the Books and Records in its possession with respect to periods through the Closing and the right to make copies and extracts therefrom to the extent that such access may be reasonably required by the requesting party in connection with (A) the preparation of Tax Returns, (B) any Tax audit or other proceeding relating to Taxes, (C) compliance with the requirements of any Governmental or Regulatory Authority, or (D) any actual or threatened action or proceeding. Parent and the Surviving Corporation may not, for a period of seven (7) years after the Closing Date, destroy or otherwise dispose of any such books, records and other data unless (1) the Surviving Corporation will first offer in writing to surrender such books, records and other such data to the Shareholders and (2) the Shareholders do not agree in writing to take possession thereof during the thirty (30) day period after such offer is made.
(ii) After the Closing, each Seller and its Affiliates will hold, and will use its reasonable best efforts to cause accountants, counsel, consultants, advisors and agents to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, all confidential documents and information concerning the Company and the
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Subsidiaries, except to the extent that such information can be shown to have been (A) previously known on a nonconfidential basis by such Seller, (B) in the public domain through no fault of such Seller or its Affiliates or (C) later lawfully acquired by such Seller from sources other than those related to its prior ownership of the Company and the Subsidiaries. The obligation of each Seller and its Affiliates to hold any such information in confidence shall be satisfied if they exercise the same care with respect to such information as they would take to preserve the confidentiality of their own similar information.
(iii) On and after the Closing Date, each Seller will afford promptly to Parent and its agents, in response to a request made in good faith, reasonable access to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent necessary or useful for Parent in connection with any audit, investigation, dispute or litigation relating to the Company or any Subsidiary with respect to Income Taxes.
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