Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2. (b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof. (c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates. (d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense. (e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives. (f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/)
Access; Confidentiality. (a) Between Upon reasonable advance written notice, and subject to applicable logistical restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shall afford Parent and Parent’s representatives reasonable access, during normal business hours between the date of this Agreement and the Closingearlier of the Acceptance Time and the date of termination of this Agreement, Seller shall to the Acquired Companies’ (i) afford each of Parentofficers, Purchaseremployees, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Businesspersonnel, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require assets and (iii) all books and records, and, during such period, the Company shall furnish each of Parentpromptly to Parent all information, Purchaser and Purchaser's Subsidiary with such including financial and operating data and other information data, concerning the Business its business as they Parent may from time to time reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information to the extent such disclosure in the reasonable judgment of the Company could: (i) result in the disclosure of any trade secrets of Third Parties; (ii) jeopardize protections afforded to any of the Acquired Companies under the attorney-client privilege or the attorney work product doctrine; (iii) violate any Law; or (iv) materially and adversely interfere with the conduct of the Acquired Companies’ business; and provided further that any such access shall be afforded and any such information shall be furnished solely at Parent’s expense. Each party will direct its employees All requests for access pursuant to render this Section 6.5(a) must be directed to the Chief Legal Officer of the Company or another person designated in writing by the Company. Notwithstanding anything herein to the contrary, Parent and Merger Sub shall not, and shall cause their respective representatives not to, contact any assistance which partner, licensor, licensee, customer or supplier of the Company in connection with the Offer, the Merger or any of the other party may reasonably request in examining Transactions without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or utilizing records referred to in this Section 6.2delayed).
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records Parent and the like) Company hereby acknowledge and relating agree to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause continue to be delivered to it bound by the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatConfidentiality Agreement. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared All information provided by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair Acquired Companies pursuant to this Agreement or replace Assets that are damaged or destroyed, other than ordinary wear obtained by Parent and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fits representatives pursuant to Section 6.5(a) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to treated as confidential information of the terms Acquired Companies for purposes of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 4 contracts
Samples: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.), Merger Agreement (Harmony Biosciences Holdings, Inc.)
Access; Confidentiality. (a) Between From the date of this Agreement and hereof until the Closing, the Seller shall permit the Acquiror and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice of no less than one (i1) afford each of ParentBusiness Day , Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices the personnel, properties, Contracts, Tax Returns, the Evamist Books and other facilities Records, the Assumed Liabilities or the Evamist Business, and the Seller shall furnish promptly to the Acquiror such information in the Seller’s possession concerning the Purchased Assets, the Assumed Liabilities or the Evamist Business as the Acquiror may reasonably request; provided, however, that any such access shall be conducted in a manner as not to unreasonably interfere with the operation of the Evamist Business and the Seller shall not be required to all provide any financial, operating or other information that is not currently available through the Seller’s existing business processes and the creation of which would be unduly burdensome on the Seller. The Seller may redact such portions of its books and records relating that do not relate to the Business Purchased Assets, the Assumed Liabilities or the Evamist Business. The Seller shall instruct its respective employees, counsel and financial advisors to provide reasonable cooperation to the employees and personnel Acquiror in its investigation of the Evamist Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On The Seller shall implement procedures to keep confidential, and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary cause its Affiliates and its and their authorized representativesofficers, directors, employees, representatives and advisors to have access to and examine and make copies of keep confidential, all books and records of Seller information relating to the Business Purchased Assets, Assumed Liabilities and Evamist Business, except as required by Law and except for information which are is or becomes generally available to the public other than as a result of a disclosure by the Seller or its Affiliates and its and their officers, directors, employees, representatives or agents. The Seller shall not delivered disseminate any such information other than to Purchaser those employees of the Seller who have a business need to access such information (i) in connection with the preparation of the Seller’s accounting records, (ii) in connection with the preparation of any Tax Returns or Purchaser's Subsidiary pursuant hereto with any Tax audits, (including correspondenceiii) in connection with any suit, memorandaclaim, books of accountaction, Tax records and the like) and proceeding or investigation relating to events occurring the Purchased Assets, the Assumed Liabilities or the Evamist Business or (iv) in connection with the operation of the Evamist Business in the Ordinary Course of Business prior to the date hereof Closing. Effective upon Closing, upon written request of the Acquiror, from time to time, the Seller shall (at the Acquiror’s sole cost and expense) use reasonable efforts to transactions enforce the Seller’s rights with respect to the use and maintenance of confidential information relating to the Evamist Business under all confidentiality agreements between the Seller and any other potential acquiror of the Evamist Business that were entered into in contemplation of the sale of the Evamist Business. The Seller shall not waive or events occurring prior release its rights under such confidentiality agreements with respect to the use and maintenance of such confidential information with respect to the Evamist Business.
(c) Information within the Purchased Assets disclosed to the Acquiror pursuant to this Agreement (including in the Seller Disclosure Schedule and the other Schedules delivered pursuant to this Agreement) shall be held as Confidential Information (as defined in the Confidentiality Agreement) and shall be subject to the Confidentiality Agreement to the extent such information is Confidential Information as of the date hereof.
(cd) ParentThe parties hereto, Purchaser and Purchaser's Subsidiary or any of their respective Affiliates or any of their respective officers or directors, shall cooperate as may be reasonably required in connection with Sellerthe investigation and defense of any suit, at Seller's expenseaction, and make available claim, proceeding or investigation, in each case that is adverse to Seller such documentsa third party, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business Purchased Assets, the Assumed Liabilities or Seller prior to the Closing as Seller may reasonably require after Evamist Business; provided, however, that the Closing requesting party shall reimburse the non-requesting party promptly for all reasonable out-of-pocket costs and expenses incurred in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving such requests, including reasonable notice to the other, legal fees and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expensecosts.
(e) ParentFollowing the Closing, Purchaserfor so long as such information is retained by the Seller (which shall be for a period of at least three (3) years), Purchaser's Subsidiary the Seller shall permit the Acquiror and their its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice, to the Seller and its books, records and personnel to the extent relating to the Purchased Assets, the Assumed Liabilities or the Evamist Business, to the extent such access may reasonably be required: (including its designated engineers or consultantsi) may at any time enter into and upon all or any portion in connection with the preparation of the Business' Acquiror’s accounting records or with any Business Subsidiary's properties audits thereof, (including all Real Propertyii) in order connection with any suit, claim, action, proceeding or investigation relating to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretionthe Purchased Assets, the environmental condition Assumed Liabilities or the Evamist Business (other than such a suit, claim, action, proceeding or investigation that is adverse to the Seller) or (iii) in connection with any required regulatory filing relating to the Purchased Assets, the Assumed Liabilities or the Evamist Business; provided that the Acquiror shall reimburse the Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by the Seller in connection with any such request. Notwithstanding the foregoing, the Seller need not disclose to the Acquiror any information: (i) relating to pricing or other matters that are highly sensitive if (I) providing such portions of documents or information, in the good faith opinion of the Seller’s counsel, would reasonably be expected to result in antitrust difficulties for the Seller and (II) the Seller designates such information as “outside counsel and retained experts only” and discloses such information to Acquiror’s outside counsel and retained experts; or (ii) which the Seller is prohibited from disclosing by applicable Law. If any material is withheld by the Seller pursuant to the immediately preceding sentence, the Seller shall inform the Acquiror as to the general nature of what is being withheld. The Seller may redact such portions of such properties books and records that do not relate to the Purchased Assets, the Assumed Liabilities or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Evamist Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following Following the Closing, this Section 6.2 for so long as such information is retained by Acquiror (which shall be for a period of at least three (3) years), the Acquiror shall permit the Seller and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice, to the Acquiror and the Confidentiality Agreement shall not prohibit ParentBooks and Records included in the Purchased Assets and the employees of the Acquiror or its Subsidiaries, Purchaser or Purchaser's Subsidiary from using and providing to third parties the extent that such information concerning the Assets or the Business as it access may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from reasonably be required: (i) in connection with the use preparation of the Seller’s accounting records or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreementwith any audits thereof, (ii) in connection with any suit, claim, action, proceeding or investigation relating to the use Purchased Assets, the Assumed Liabilities or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source the Evamist Business (other than Seller such a suit, claim, action, proceeding or investigation that is adverse to the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, Acquiror) or (iii) in connection with any required regulatory filing relating to the disclosure Purchased Assets, the Assumed Liabilities or the Evamist Business; provided that the Seller shall reimburse the Acquiror promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by the Acquiror in connection with any such request, including reasonable attorney fees and costs. Notwithstanding the foregoing, the Acquiror need not disclose to the Seller any information: (A) relating to pricing or other matters that are highly sensitive if (I) providing such portions of documents or information, in the opinion of the Acquiror’s counsel, might reasonably result in antitrust difficulties for the Acquiror and (II) the Acquiror designates such information as “outside counsel and retained experts only” and discloses such information to the Seller’s outside counsel and retained experts or (B) which the Acquiror is prohibited from disclosing by applicable Law. If any material is withheld by the Acquiror pursuant to the immediately preceding sentence, the Acquiror shall inform the Seller as to the general nature of what is being withheld. The Acquiror may redact such portions of such information required by law or court order, provided that, Books and Records that do not relate to the extent practicablePurchased Assets, prior to such disclosure required by law the Assumed Liabilities or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithEvamist Business.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Access; Confidentiality. (a) Between At all times during the date period commencing with the execution and delivery of this Agreement and continuing until the Closingearlier to occur of the termination of this Agreement pursuant to Article VIII and the Merger Effective Time, Seller the Company shall (i) afford Parent, and Parent shall afford the Company, and each of Parenttheir respective financial advisors, Purchaserbusiness consultants, Purchaser's Subsidiary legal counsel, accountants and their authorized other agents and representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representativesupon reasonable notice, to have access to and examine and make copies of all its properties, books and records of Seller relating and personnel; provided, however, that the disclosing party may restrict or otherwise prohibit access to any documents or information to the Business which are not delivered extent that (i) any applicable Law requires such party to Purchaser restrict or Purchaser's Subsidiary otherwise prohibit access to such documents or information or (ii) access to such documents or information would give rise to a waiver of any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information, and provided further, that no information or knowledge obtained by the receiving party in any investigation conducted pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof access contemplated by this Section 6.05 shall affect or be deemed to modify any representation or warranty of the disclosing party set forth in this Agreement or otherwise impair the rights and remedies available to transactions receiving party hereunder. If the Company or events occurring prior Parent does not provide access or information in reliance on the preceding sentence, it shall use its commercially reasonable efforts to communicate the applicable information to the date hereof.
(c) Parentother party in a way that would not violate the applicable Law or obligation or to waive such a privilege including by providing such information in redacted form as necessary to preserve such a privilege or comply with such Law or otherwise make appropriate substitute disclosure arrangements, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after extent possible. Any investigation conducted pursuant to the Closing access contemplated by this Section 6.05 shall be conducted in connection a manner that does not unreasonably interfere with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business Company and its Subsidiaries or Parent and its Subsidiaries. Nothing in this Section 6.05 or elsewhere in this Agreement shall be construed to require the Company, any of its Subsidiaries, Parent, any of its Subsidiaries, or any of their respective Representatives of any of the foregoing to prepare any reports, analyses, appraisals, opinions or other information or to allow sampling of any environmental media or building component.
(b) The terms and conditions of the Confidentiality Agreement shall apply to any information obtained by Seller prior to Parent, the Closing Company or any of their respective financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice conducted pursuant to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereataccess contemplated by this Section 6.05. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared Except for disclosures expressly permitted by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, each of the Company and such Parent shall hold, and shall cause their respective Representatives to hold, all information shall be held by Parentreceived from the other party or its Representatives, Purchaserdirectly or indirectly, Purchaser's Subsidiary and their representatives in confidence in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 3 contracts
Samples: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Access; Confidentiality. (a) Between Each of CNYF and the CNYF Subsidiaries shall permit Niagara Bancorp and its representatives reasonable access to its properties, and shall disclose and make available to them all books, papers and records relating to the assets, stock ownership, properties, operations, obligations and liabilities of CNYF and its subsidiaries, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors (and any committees thereof)(other than minutes of any confidential discussion of this Agreement and the transactions contemplated hereby), and stockholders, organizational documents, bylaws, material contracts and agreements, filings with any regulatory authority, accountants' work papers, litigation files, plans affecting employees, and any other business activities or prospects in which Niagara Bancorp may have a reasonable interest. CNYF and CSB shall make their respective officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with Niagara Bancorp and its representatives. CNYF and CSB shall permit a representative of Niagara Bancorp to attend any meeting of CNYF and/or CSB's Board of Directors or the Executive Committees thereof (provided that neither CNYF nor CSB shall be required to permit the Niagara Bancorp representative to remain present during any confidential discussion of the Agreement and the transactions contemplated thereby). The parties will hold all such information delivered in confidence to the extent required by, and in accordance with, the provisions of the confidentiality agreement, dated November 22, 1999, among CNYF and Niagara Bancorp (the "Confidentiality Agreement").
(b) Niagara Bancorp agrees to conduct such investigations and discussions hereunder in a manner so as not to interfere unreasonably with normal operations and customer and employee relationships of the other party.
(c) In addition to the access permitted by subparagraph (a) above, from the date of this Agreement and through the ClosingClosing Date, Seller CNYF shall (i) afford each permit employees of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Niagara Bancorp reasonable access to all offices and other facilities of the Business and to all books and records information relating to the Business problem loans, loan restructurings and to the employees and personnel loan work-outs of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesCNYF.
(d) Each If the transactions contemplated by this Agreement shall not be consummated, CNYF and Niagara Bancorp will each destroy or return all documents and records obtained from the other party agrees not or its representatives, during the course of its investigation and will cause all information with respect to destroy any files or records which are subject the other party obtained pursuant to this section without giving reasonable Agreement or preliminarily thereto to be kept confidential, except to the extent such information becomes public through no fault of the party to whom the information was provided or any of its representatives or agents and except to the extent disclosure of any such information is legally required. CNYF and Niagara Bancorp shall each give prompt written notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at of any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or contemplated disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to where such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithis so legally required.
Appears in 3 contracts
Samples: Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access to all offices and other facilities of the Business and to facilities, all books and records relating to the Business and to the all employees and personnel of the BusinessSeller and its Subsidiaries, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary its authorized representatives to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary its authorized representatives with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business Business, Seller or Seller any of its Subsidiaries prior to the Closing as Seller may reasonably require after the Closing in connection with any tax Tax determination or contractual obligations to third parties Third Parties or to defend or prepare for the defense of any claim against Seller or any Subsidiary or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller or any Subsidiary prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(dc) Each party agrees shall not to destroy any files or records which are subject to this section Section 6.2 without giving reasonable notice to the otherother party, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fd) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary Purchaser or their its representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its representatives in accordance with the terms of the Confidentiality Agreement Agreement; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties Third Parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 3 contracts
Samples: Asset Sale Agreement (Williams Communications Group Inc), Asset Sale Agreement (Williams Communications Group Inc), Asset Sale Agreement (Ibeam Broadcasting Corp)
Access; Confidentiality. (a) Between Subject to Section 11.1 hereof, upon reasonable notice and subject to applicable laws, each of Fox Chase and Univest, for the date purposes of this Agreement verifying the representations and warranties of the other and preparing for the Merger and the Closingother matters contemplated by this Agreement, Seller shall, and shall (i) afford cause each of Parenttheir respective Subsidiaries to, Purchaserafford to the officers, Purchaser's Subsidiary employees, accountants, counsel, advisors and their authorized other representatives reasonable access of the other party, access, during normal business hours during the period prior to the Effective Time, to all offices its properties, books, contracts, commitments, personnel, information technology systems, and records, and each shall cooperate with the other facilities party in preparing to execute after the Effective Time conversion or consolidation of systems and business operations generally (including by entering into customary confidentiality, non-disclosure and similar agreements with such service providers and/or the Business other party), and, during such period, each of Fox Chase and to all books Univest shall, and records relating shall cause its respective Subsidiaries to, make available to the Business and to the employees other party such information concerning its business, properties and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make as such inspections and to make copies of such books and records as they party may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party shall use commercially reasonable efforts to minimize any interference with the other party’s regular business operations during any such access. Neither Fox Chase nor Univest nor any of their respective Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of Fox Chase’s or Univest’s, as the case may be, customers, jeopardize the attorney-client privilege of the institution in possession or control of such information (after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties) or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will direct its employees to render any assistance make appropriate substitute disclosure arrangements under circumstances in which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2restrictions of the preceding sentence apply.
(b) On and after Prior to the ClosingEffective Time, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary Univest and their authorized representatives, to have access to and examine and make copies of Fox Chase shall hold in confidence all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or confidential information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to other on the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, terms and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms conditions of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives Agreement in accordance with Section 11.1. If the transactions contemplated by this Agreement shall not be completed, each of Univest and Fox Chase will continue to comply with the terms of the such Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Merger Agreement (Fox Chase Bancorp Inc), Merger Agreement (Univest Corp of Pennsylvania)
Access; Confidentiality. During the Pre-Closing Period, each Seller shall and shall cause its Representatives to, upon reasonable prior notice, give Buyer and its authorized Representatives reasonable access during normal business hours to Contracts, Books and Records, analysis, projections, plans, systems, management and other personnel, and Sellers’ Representatives, offices and other facilities and properties, in each case to the extent related to the Business (including the Business Employees), the Acquired Assets or the Assumed Liabilities; provided that Buyer and its Representatives shall not interfere unreasonably with the business and operations of Sellers. The terms of the Confidentiality Agreement shall apply to any information provided to Buyer and its Representatives pursuant to this Section 6.4. The right of Buyer to access pursuant to this Section 6.4 shall not modify in any way any representation or warranty in Article IV. Notwithstanding anything to the contrary set forth herein, no Seller shall be required to provide access to, or to disclose information, where such access or disclosure would (a) Between jeopardize the attorney-client or other legal privilege of such Seller, (b) relate to individual performance or evaluation records, medical histories or other personnel-related information the disclosure of which would subject Sellers or any of their Affiliates to Liability, (c) contravene any applicable Law or (d) give a third party the right to terminate or accelerate the rights under a Contract to which a Seller is a party as of the date of this Agreement and or otherwise bound as of the Closingdate of this Agreement; provided that in each case, Seller shall Parent shall: (i) afford each give reasonable notice to Buyer of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable the fact that it is restricting or otherwise prohibiting access to all offices and other facilities of the Business and any documents or information pursuant to all books and records relating to the Business and to the employees and personnel of the Businessthis Section 6.4, (ii) permit each inform Buyer with sufficient detail of Parentthe reason for such restriction or prohibition, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with cause the applicable Seller to use its reasonable best efforts to cause the documents or information that are subject to such financial and operating data and other information concerning restriction or prohibition to be provided in a manner that would not reasonably be expected to violate such restriction or prohibition. During the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hoursPre-Closing Period, Seller will permit each Parent shall use commercially reasonable efforts to arrange on-site inspections of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to facilities set forth in Schedule 6.4 as soon as practicable following the date hereof and to transactions or events occurring prior to the date hereof.
(c) at times that are mutually convenient for Seller Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 Buyer and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithapplicable suppliers.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Medicines Co /De)
Access; Confidentiality. (a) Between During the date period prior to the earlier of the Effective Time and the termination of this Agreement and Agreement, the Closing, Seller Company shall (i) afford each of to Parent, Purchaserand to Parent’s Representatives, Purchaser's Subsidiary and their authorized representatives reasonable access during normal business hours and on reasonable notice to all of its and its Subsidiaries’ properties, books and records and to those directors, officers and employees of the Company to whom Parent reasonably requests access, (ii) furnish, as promptly as practicable, to Parent all information concerning its and its Subsidiaries’ business, properties, Contracts, assets, liabilities, personnel, books and records and financial information and other aspects of the Company and its Subsidiaries as Parent may reasonably request, (iii) reasonably cooperate with Parent and its Representatives to organize and facilitate meetings among Parent and its Representatives and the Company’s Representatives to be located at the properties, offices and or other facilities of the Business Company and the Company Subsidiaries at such times during normal business hours as Parent may reasonably request, (iv) use reasonable best efforts to furnish or produce information related to the financial or Tax records of the Company and its Subsidiaries if reasonably requested by Parent or its Representatives and (v) reasonably cooperate with Parent and Parent’s Representatives with respect to communications to, and to all books organize and records relating to the Business facilitate meetings with, customers, suppliers and to the employees and personnel other key business relations of the Business, (ii) permit Company and each Subsidiary of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records the Company as they Parent may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees Notwithstanding the foregoing, the Company shall not be required to render provide any assistance which such access or information to the other party may extent that doing so, in the reasonable judgment of the Company, would (A) cause a waiver of an attorney-client privilege or loss of attorney work product protection or (B) constitute a violation of any applicable Law (including Antitrust Laws) (in each case, it being agreed that the Company shall give notice to Parent of the fact that it is withholding such access or information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such access or information, as applicable, to be provided, or made available, in a manner that would not reasonably request in examining be expected to cause such a waiver or utilizing records referred to in this Section 6.2violation).
(b) On and after All information received from the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller Company or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives Representatives under Section 6.08(a) shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Lmi Aerospace Inc)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall Parent will, and will cause the Transferred Companies and Sellers to, during normal business hours and upon reasonable prior notice, (i) afford each of Parent, Purchaser, Purchaser's Subsidiary provide to Buyer and their authorized representatives its Representatives reasonable access to all offices and other facilities of the Business and to all premises (including the Leased Sites), Assets, property, books and records relating to the Business and to the employees and personnel of the Transferred Companies and the Business, ; (ii) permit each of Parentfurnish to Buyer and its Representatives financial information, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning pertaining to the Business as they may from time and the Business Assets; (iii) make available for inspection and copying by Buyer and its Representatives copies of any documents relating to time reasonably request. Each party will direct the foregoing; and (iv) permit Buyer and its Representatives to conduct reasonable interviews of key employees to render any assistance which and executive officers of the other party may reasonably request in examining or utilizing records referred to in Business; provided, however, that (A) Buyer shall exercise its right under this Section 6.2.
4.1(a) in such a manner as to not unreasonably interfere with the operation of the Business; (bB) On Buyer shall not be allowed to perform invasive or subsurface investigations of any Real Property, including any sampling, testing or removal of materials (other than documents to the extent permitted hereunder) from the offices, factories and after the Closing, during normal business hours, Seller will permit each properties of Parent, Purchaserthe other Sellers or the Transferred Companies, Purchaser's Subsidiary without the prior consent of Parent (which consent can be withheld in Parent’s sole discretion); and their authorized representatives, to have (C) Parent may limit such access to and examine and make copies of all books and records of Seller relating described in clauses (i) through (iv) above to the Business which are not delivered extent such access (1) would violate or give rise to Purchaser liability of Parent or Purchaser's Subsidiary pursuant hereto its Affiliates under applicable Legal Requirements, including any Antitrust Laws; (including correspondence, memoranda, books of account, Tax records and the like2) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably would require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller Parent or any of its Affiliates.
Affiliates to waive any attorney-client privilege; or (d3) Each party agrees not conflicts with any confidentiality obligations to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all Parent or any portion of the Business' or any Business Subsidiary's properties its Affiliates is bound (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller it being understood that Parent shall, and shall cause the Business Sellers and any Business Subsidiary the Transferred Companies to, cooperate with each in commercially reasonable efforts and requests for waivers that would enable disclosure to Buyer to occur without so jeopardizing privilege or contravening such Legal Requirement, privilege or confidentiality obligation). The representations, warranties and covenants of Parenta party and any Person’s right to indemnification or other remedy based upon any representation, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil warranty or surface covenant of a party will not be affected or ground water tests or reports, deemed waived by any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of such Person or by reason of any knowledge acquired at any time with respect to the accuracy or inaccuracy of, or in the possession of compliance with, such representations, warranties or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativescovenants.
(fb) Any All information regarding the Business provided to Buyer and its Representatives by or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by on behalf of Parent, Purchaserthe Sellers, Purchaser's Subsidiary the Transferred Companies, their Affiliates or their representatives shall Representatives (whether pursuant to this Section 4.1 or otherwise) will be subject to the terms of governed and protected by the Confidentiality Agreement between Parent and Buyer Guarantor dated April 5, 2013 (the “Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms ”). Notwithstanding any provision of the Confidentiality Agreement providedto the contrary, howevereach of the parties hereto acknowledges and agrees that, that in consultation with Parent, unless Parent has a reasonable objection in respect of specific Business Employees, Buyer shall be permitted to (i) enter into discussions and negotiations with up to thirty (30) Business Employees concerning their employment with the Business following the Closing; and (ii) enter into Contracts with each of such Business Employees to the extent the effectiveness of such Contracts is conditioned on the consummation of the Closing; provided that in the event this Agreement is terminated in accordance with Article VII, Buyer agrees that, for a period of two (2) years following the date of such termination, neither it nor any of its Affiliates shall hire any Business Employee with whom Buyer or one of its Affiliates had discussions with prior to the termination of this Section 6.2 Agreement. Following the Closing, Buyer and its Affiliates shall be entitled to use, and disclose, all information relating to the Business free of any restrictions, and the parties hereto agree that the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing apply to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice any of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithforegoing actions.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Access; Confidentiality. (a) Between Each of PFC and the PFC Subsidiaries shall permit Sound Federal Bancorp and its representatives reasonable access to its properties, and shall disclose and make available to them all books, papers and records relating to the assets, properties, operations, obligations and liabilities of PFC and its subsidiaries, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors (and any committees thereof)(other than minutes of any confidential discussion of this Agreement and the transactions contemplated hereby), and stockholders, organizational documents, bylaws, material contracts and agreements, filings with any regulatory authority, accountants' work papers, litigation files, except as necessary to preserve any attorney/client privilege, plans affecting employees, and any other business activities or prospects in which Sound Federal Bancorp may have a reasonable interest. PFC and First Federal shall make their respective officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with Sound Federal Bancorp and its representatives. PFC and First Federal shall permit a representative of Sound Federal Bancorp to attend any meeting of PFC and/or First Federal's Board of Directors or the Executive Committees thereof (provided that neither PFC nor First Federal shall be required to permit the Sound Federal Bancorp representative to remain present during any confidential discussion of the Agreement and the transactions contemplated thereby). The parties will hold all such information delivered in confidence to the extent required by, and in accordance with, the provisions of the confidentiality agreement, dated January 11, 2000, among PFC and Sound Federal Bancorp (the "Confidentiality Agreement").
(b) Sound Federal Bancorp agrees to conduct such investigations and discussions hereunder in a manner so as not to interfere unreasonably with normal operations and customer and employee relationships of the other party.
(c) In addition to the access permitted by subparagraph (a) above, from the date of this Agreement through the Closing Date, PFC and the Closing, Seller each PFC Subsidiary shall (i) afford each permit employees of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Sound Federal Bancorp reasonable access to all offices and other facilities of the Business and to all books and records information relating to the Business problem loans, loan restructurings and to the employees loan work-outs of PFC and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesFirst Federal.
(d) Each If the transactions contemplated by this Agreement shall not be consummated, PFC and Sound Federal Bancorp will each destroy or return all documents and records obtained from the other party agrees not or its representatives during the course of its investigation and will cause all information with respect to destroy any files or records which are subject the other party obtained pursuant to this section without giving reasonable Agreement or preliminarily thereto to be kept confidential, except to the extent such information becomes public through no fault of the party to whom the information was provided or any of its representatives or agents and except to the extent disclosure of any such information is legally required. PFC and Sound Federal Bancorp shall each give prompt written notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at of any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or contemplated disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to where such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithis so legally required.
Appears in 2 contracts
Samples: Merger Agreement (Sound Federal Bancorp), Merger Agreement (Peekskill Financial Corp)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller the Company shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Optionee and their its authorized representatives reasonable full and complete access during normal working hours to all books, records, offices and other facilities of the Business Company and to all books and records relating to the Business and to the employees and personnel of the Businesseach Company Subsidiary, including employees, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary Optionee to make such inspections and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Optionee with such financial and operating data and other information concerning the Business as they Optionee may from time to time reasonably request. Each party Optionee and its authorized representatives shall conduct all such inspections in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2business and operations of the Company and the Company Subsidiaries.
(b) On Optionee and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time during normal business hours, upon reasonable advance notice, enter into and upon all or any portion of the Business' Company’s or any Business Company Subsidiary's ’s properties (including all Real PropertyProperty and all real estate which is the subject of a Lease) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem Optionee deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller The Company shall, and shall cause the Business and any Business Subsidiary Company Subsidiaries to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary Optionee and their its authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary Optionee and their its authorized representatives full access during normal business hours, upon reasonable advance notice, to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary Optionee and their its authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller the Company or any Business Company Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear their properties and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesbusinesses.
(fc) Any Each party agrees that it will treat in confidence all documents, materials and other information which it shall have obtained regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject other party during the course of the negotiations leading to the terms consummation of the Confidentiality transactions contemplated hereby (whether obtained before or after the date of this Agreement), the investigation provided for herein and such information shall be held by Parentthe preparation of this Agreement and other related documents, Purchaserand, Purchaser's Subsidiary if the transactions contemplated hereby are not consummated, each party will return to the other party all copies of nonpublic documents and their representatives materials which have been furnished in accordance with the terms of the Confidentiality Agreement connection therewith; provided, however, that following the Optionors shall not be required to return any documents or materials to the Company if the transactions contemplated hereby are not consummated. Such documents, materials and information shall not be communicated to any third Person (other than, in the case of the Optionee, the Company and the Optionors, their respective counsel, accountants, financial advisors or lenders). No party shall use any confidential information in any manner whatsoever except solely for the purpose of evaluating the proposed purchase and sale of the Option Shares and consummating the Transactions; provided, however, that after the Closing, this Section 6.2 Optionee may use or disclose any confidential information reasonably related to the business of the Company or the Company Subsidiaries. The obligation of each party to treat such documents, materials and the Confidentiality Agreement other information in confidence shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing apply to third parties such any information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from which (i) the use is or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis such party from a source other than Seller the other party not in breach of an obligation of confidentiality, (ii) is or becomes available to the Seller's representatives, provided that public other than as a result of disclosure by such source is not known by Purchaser party or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such informationits agents, or (iii) the disclosure of such information is required by to be disclosed under applicable law or court orderjudicial process, provided that, but only to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to it must be made in accordance therewithdisclosed.
Appears in 2 contracts
Samples: Option Agreement (Pmi Group Inc), Option Agreement (Credit Suisse First Boston Usa Inc)
Access; Confidentiality. (a) Between From the date of this Agreement until the Closing Date, the Shareholders shall cause the Company and its Subsidiaries to, upon reasonable prior written notice to the Closing, Seller shall Company (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give the Purchaser and their its authorized representatives reasonable access during normal business hours to all offices its properties, books and other facilities records, customers, suppliers, employees and others doing business with the Company, provided, that the Purchaser and its authorized representatives shall not unreasonably interfere in the business and operations of the Business Company and to all books its Subsidiaries, and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, furnish the Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary its authorized representative with such financial and operating data and other information concerning the Business business and properties of the Company and the Subsidiaries as they the Purchaser may from time to time reasonably request. Each party Notwithstanding the foregoing sentence, the Purchaser agrees that it will direct not prior to the Closing conduct any invasive environmental investigations, study, audit or testing on any of the properties owned or leased by the Company or its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2Subsidiaries.
(b) On The Purchaser shall hold and after treat all documents and information concerning the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating Company furnished to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto its respective representatives in connection with the transactions contemplated by this Agreement confidential in accordance with the Confidentiality Agreement dated March 7, 2003, between the Company (including correspondence, memoranda, books of account, Tax records and the likeor its representative) and relating Purchaser (the “Confidentiality Agreement”), which Confidentiality Agreement shall remain in full force and effect in accordance with its terms, the Purchaser hereby adopting and agreeing to events occurring prior to be bound by the date hereof and to transactions or events occurring prior to the date hereofterms thereof.
(c) Parent, Purchaser The Shareholders shall use their commercially reasonable efforts to cause the Company and Purchaser's Subsidiary shall its Subsidiaries and their respective officers to reasonably cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations the financing necessary to third parties or to defend or prepare for consummate the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destructiontransactions contemplated hereby, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) providing direct contact between prospective lenders and the use or disclosure officers of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, Company and its Subsidiaries and (ii) providing assistance in the use or disclosure of such information that becomes available preparation for, and participating in, meetings, due diligence sessions, road shows and similar presentations to Parentand with, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representativesamong others, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such informationprospective lenders, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure investors and the disclosure to be made in accordance therewithrating agencies.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Access; Confidentiality. (a) Between Except for competitively sensitive information and subject to legal and contractual restrictions, the date of this Agreement and the Closing, Seller Company shall (iand shall cause each of its Subsidiaries to) afford each of Parentto the officers, Purchaseremployees, Purchaser's Subsidiary accountants, counsel and their other authorized representatives of Alcoa reasonable access during normal business hours upon reasonable notice, throughout the period prior to all offices and other facilities the earlier of the Business and Effective Time or the Termination Date, to all its properties, offices, employees, contracts, commitments, books and records relating (including but not limited to Tax Returns) and any report, schedule or other document filed or received by it pursuant to the Business requirements of federal or state securities laws and to the employees shall (and personnel of the Business, (ii) permit shall cause each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iiiits Subsidiaries to) furnish each of Parent, Purchaser and Purchaser's Subsidiary with to Alcoa such additional financial and operating data and other information concerning the Business as they to its and its Subsidiaries' respective businesses and properties as Alcoa may from time to time reasonably request. Each party Alcoa and Merger Sub will direct make all reasonable best efforts to minimize any disruption to the businesses of the Company and its employees Subsidiaries which may result from the requests for data and information hereunder. Alcoa shall afford to render the officers, employees, accountants, counsel and other authorized representatives of the Company reasonable access during normal business hours upon reasonable notice, to its officers and accountants to the extent reasonably necessary in connection with the preparation of the Proxy Statement. No investigation pursuant to this Section 5.3(a) shall affect any assistance which the other party may reasonably request in examining representation or utilizing records referred to warranty in this Section 6.2Agreement of any party hereto or any condition to the obligations of the parties hereto. All requests for access and information shall be coordinated through senior executives of the parties to be designated.
(b) On Alcoa will not, and after the Closingwill cause its officers, during normal business hoursemployees, Seller will permit each of Parentaccountants, Purchasercounsel and representatives not to, Purchaser's Subsidiary and their authorized representatives, use any information obtained pursuant to have access to and examine and make copies of all books and records of Seller relating this Section 5.3 for any purpose unrelated to the Business which are consummation of the transactions contemplated by this Agreement. Pending consummation of the transactions herein 33 42 contemplated, Alcoa will keep confidential, and will cause its officers, employees, accountants, counsel and representatives to keep confidential, all information and documents obtained pursuant to this Section 5.3 unless such information (i) was already known to it, (ii) becomes available to it from other sources not delivered known by it to Purchaser be bound by a confidentiality obligation, (iii) is independently acquired by it as a result of work carried out by any of its employees or Purchaser's Subsidiary pursuant hereto representatives to whom no disclosure of such information has been made, or (including correspondenceiv) is disclosed with the prior written approval of the other party. Upon any termination of this Agreement, memorandaAlcoa will, books of accountupon request, Tax records collect and the like) and relating to events occurring prior deliver to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties Company all documents obtained by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller it or any of its Affiliates.
(d) Each party agrees officers, employees, accountants, counsel and representatives then in their possession and any copies thereof. Alcoa and its representatives shall not to destroy contact any files distributors, suppliers, employees or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion customers of the Business' or any Business Subsidiary's properties (including all Real Property) Company in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate connection with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect discussion of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchasertransactions contemplated hereby without the Company's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesprior consent.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Merger Agreement (Alcoa Inc), Merger Agreement (Reynolds Metals Co)
Access; Confidentiality. (a) Between Each of Innes Street and Citizens Bank shall permit Xxxxxx Bancorp and its representatives reasonable access to its properties, and shall disclose and make available to them all books, papers and records relating to the assets, properties, operations, obligations and liabilities of Innes Street and Citizens Bank, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors (and any committees thereof) (other than minutes of any confidential discussion of this Agreement and the transactions contemplated hereby), and shareholders, organizational documents, bylaws, material contracts and agreements, filings with any regulatory authority, accountants' work papers, litigation files, plans affecting employees, and any other business activities or prospects in which Xxxxxx Bancorp may have a reasonable interest (provided that Innes Street shall not be required to provide access to any information that would violate its, or Citizens Bank's, attorney-client privilege or would violate applicable law or regulation). Innes Street and Citizens Bank shall make their respective officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with Xxxxxx Bancorp and its representatives. In addition, from the date of this Agreement through the Closing Date, Innes Street and the Closing, Seller Citizens Bank shall (i) afford each permit employees of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Xxxxxx Bancorp reasonable access to information relating to problem loans, loan restructurings and loan workouts of Innes Street and Citizens Bank. The parties will hold all offices such information delivered in confidence to the extent required by, and other facilities in accordance with, the provisions of the Business confidentiality agreement, dated May 24, 2001, between Innes Street and to all books and records relating to Xxxxxx Bancorp (the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2"Confidentiality Agreement").
(b) On Xxxxxx Bancorp agrees to conduct such investigations and after the Closing, during discussions hereunder in a manner so as not to interfere unreasonably with normal business hours, Seller will permit each operations and customer and employee relationships of Parent, Purchaser, Purchaser's Subsidiary Innes Street and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofCitizens Bank.
(c) ParentIf the transactions contemplated by this Agreement shall not be consummated, Purchaser Innes Street and Purchaser's Subsidiary shall cooperate Xxxxxx Bancorp will each destroy or return all documents and records obtained from the other party or its representatives, during the course of its investigation and will cause all information with Sellerrespect to the other party obtained pursuant to this Agreement or preliminarily thereto to be kept confidential, at Seller's expense, and make available except to Seller the extent such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities becomes public through no fault of the Business or Seller prior party to whom the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller information was provided or any of its Affiliates.
(d) Each party agrees not representatives or agents and except to destroy the extent disclosure of any files or records which are subject to this section without giving reasonable such information is legally required. Innes Street and Xxxxxx Bancorp shall each give prompt written notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at of any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or contemplated disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to where such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithis so legally required.
Appears in 2 contracts
Samples: Merger Agreement (Innes Street Financial Corp), Merger Agreement (Innes Street Financial Corp)
Access; Confidentiality. (a) Between the date of this Agreement Seller agrees to permit Purchaser and the Closingits accountants, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary counsel and their other authorized representatives to have, during the period from the Effective Date to the Closing Date, reasonable access to all offices and other facilities of the Business and to all premises, books and records relating to the Acquired Business during normal business hours. Seller agrees to make available to Purchaser upon reasonable advance notice and to during normal business hours, the employees and personnel of Seller involved in the conduct of the Acquired Business, (ii) permit each of Parent, as Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) request, provided that such availability shall not interfere with the normal operations of Seller. Seller shall furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating operational data and other information concerning relating to the Acquired Business as they may Purchaser shall from time to time reasonably request. Each party will direct its employees to render , including without limitation information regarding increases in the compensation of Persons employed in the Acquired Business that are, or were, implemented in 1998, and other information regarding the compensation of such Persons (other than information regarding any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating transaction award related to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation sale of Seller or any of its Affiliates.
(d) Each party agrees not ). Except as otherwise agreed to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reportsby Seller, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller by Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its representatives in accordance with the terms of the Confidentiality Agreement provided, however, Agreement; provided that following after the Closing, this Section 6.2 and Closing Date the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing apply to third parties any such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally relating solely to the public or which subsequently has come into Acquired Business.
(b) Purchaser agrees that following the public domainClosing Date, Seller and its attorneys, accountants, officers and other than representatives shall have reasonable access, during normal business hours, to the books and records of the Acquired Business to the extent they relate to a period prior to the Closing Date (and shall permit such Persons to examine and copy such books and records to the extent requested by way such party), and shall cause the officers and employees of disclosure in violation of this Agreement, the Acquired Business to furnish (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representativesany of its Affiliates, or any regulator of Seller or any of its Affiliates) all information reasonably requested by, and otherwise cooperate with (including without limitation, allowing employees who wish to assist Seller or any of its Affiliates to make themselves available for trial, depositions and other litigation endeavors; provided that such source is assistance does not known by Purchaser or Purchaseradversely affect the employee's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iiipresent job responsibilities) the disclosure of such information required by law or court order, provided that, Seller with respect to the extent practicableAcquired Business or Purchased Assets, prior to in connection with regulatory compliance, indemnification claim verification, pending or threatened litigation, financial reporting and tax matters (including financial and tax audits and tax contests) and other similar business purposes. Purchaser shall not destroy or dispose of or permit the destruction or disposition of any such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller books and records without the prior written notice consent of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithSeller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Homeside Inc), Asset Purchase Agreement (Homeside Lending Inc)
Access; Confidentiality. (a) Between During the date of this Agreement and the ClosingPre-Closing Period, Seller Parent and its Subsidiaries shall (i) afford each and shall cause their Representatives to, upon reasonable prior notice, free of Parentcharge, Purchaser, Purchaser's Subsidiary give Buyer and their its authorized representatives Representatives reasonable access during normal business hours to all the Contracts, Books and Records, analysis, projections, plans, systems, management and other personnel, Seller Parent and its Subsidiaries’ Representatives, offices and other facilities of and properties, in each case to the Business and to all books and records relating extent related to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning including the Business as they may from time to time reasonably request. Each party will direct Employees), the Transferred Group, the Transferred Group Assets, the Acquired Assets or the Assumed Liabilities; provided that Buyer and its employees to render any assistance which Representatives shall not interfere unreasonably with the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On business and after the Closing, during normal business hours, Seller will permit each operations of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records Sellers and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatTransferred Group. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the The terms of the Confidentiality Agreement provided, however, that following the Closing, shall apply to any information provided to Buyer and its Representatives pursuant to this Section 6.2 and 6.4. Notwithstanding anything to the Confidentiality Agreement contrary set forth herein, no Seller shall not prohibit Parentbe required to provide access to, Purchaser or Purchaser's Subsidiary from using and providing to disclose information, where such access or disclosure would (a) jeopardize the attorney-client or other legal privilege of such Seller, (b) contravene any applicable Law (including any applicable law related to the confidentiality of individual performance or evaluation records, medical histories or other personnel-related information), or (c) give a third parties such information concerning party the Assets right to terminate or accelerate the Business as it may deem appropriate. The foregoing shall not preclude Parentrights under a Contract to which Seller Parent or any of its Subsidiaries is a party or otherwise bound; provided that in each case, Purchaser or Purchaser's Subsidiary from Seller Parent shall: (i) give reasonable notice to Buyer of the use fact that it is restricting or disclosure of such otherwise prohibiting access to any documents or information which currently is known generally pursuant to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this AgreementSection 6.4, (ii) inform Buyer with sufficient detail of the use reason for such restriction or disclosure of such information that becomes available to Parentprohibition, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or and (iii) cause the disclosure of such applicable Seller to use its reasonable best efforts to cause the documents or information required by law or court order, provided that, to the extent practicable, prior that are subject to such disclosure required by law restriction or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure prohibition to be made provided in accordance therewitha manner that would not reasonably be expected to violate such restriction or prohibition, including using reasonable best efforts to obtain a waiver of any such Liability or third party right.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Medicines Co /De), Purchase and Sale Agreement (Melinta Therapeutics, Inc. /New/)
Access; Confidentiality. (a) Between Sellers agree to permit Buyer and its Representatives to have, during the period from the date of this Agreement and hereof to the ClosingClosing Date, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all premises, books and records relating to the Business and to records and documentation of the ALSS Platform and other systems, during normal business hours. Sellers agree to make available to Buyer upon reasonable advance notice and during normal business hours, the employees and personnel of the BusinessSelling Companies involved in the conduct of the Business and the operation of the ALSS Platform and other systems, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they Buyer may reasonably require and (iii) request, provided that such availability shall not unreasonably interfere with the normal operations of the Selling Companies. Sellers shall furnish each of Parent, Purchaser and Purchaser's Subsidiary Buyer with such financial and operating operational data and other information concerning relating to the Business as they may Buyer shall from time to time reasonably request. Each party will direct request and shall reasonably cooperate with Buyer with respect to Buyer's need to plan for and coordinate the integration of the Purchased Assets and to prepare to undertake its employees to render any assistance which obligations under the other party may reasonably request in examining or utilizing records referred to in this Section 6.2Ancillary Agreements.
(b) On Buyer agrees that it will not, and after the Closingwill cause its Representatives not to, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, use any information obtained pursuant to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto this Section 5.02 (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring as well as any other information obtained prior to the date hereof in connection with the entering into of this Agreement) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of applicable law, and other exceptions set forth in the Confidentiality Agreement, Buyer will keep confidential, and will cause its Representatives to transactions or events occurring keep confidential, all information and documents obtained pursuant to this Section 5.02 (as well as any other information obtained prior to the date hereofhereof in connection with the entering into of this Agreement) unless such information (1) was already known to such party, (2) becomes available to such party from other sources not known by Buyer to be bound by a confidentiality obligation, (3) is disclosed with the prior written approval of Sellers or (4) is or becomes readily ascertainable from published information or trade sources. In the event that this Agreement is terminated or the transactions contemplated by this Agreement will otherwise fail to be consummated, Buyer will promptly cause all copies of documents or extracts thereof containing information and data as to Sellers, any Selling Subsidiary or the Acquired Subsidiary to be returned to Sellers at Buyer's expense, or (at Sellers' option) confirm in writing to Sellers that they have completely destroyed all such copies, documents, extracts, information and data.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior In addition to the Closing as Seller may reasonably require after the Closing confidentiality arrangements contained in this Agreement, all information provided or obtained in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties transactions contemplated by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Agreement (including its designated engineers or consultantspursuant to clause (a) may at any time enter into above) will be held by Buyer in accordance with and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, dated October 2, 2001, between Buyer and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with Parent (the "Confidentiality Agreement"). In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement provided, however, will govern.
(d) Buyer agrees that following the ClosingClosing Date, this Section 6.2 Sellers and their Representatives shall have reasonable access, during normal business hours, to the Confidentiality documentation, manuals, files and other information or data of the Business to the extent they relate to the Purchased Assets or Assumed Liabilities during the period prior to the Closing Date (but subject to the provisions and limitations of the Intellectual Property Rights Agreement regarding access to the ALSS Platform) (and shall permit such Persons to examine and copy such documentation, manuals, files and other information or data to the extent reasonably requested by such party), and shall cause the officers and employees of the Business to furnish (to Sellers or any of their Affiliates, or any regulator of Sellers or any of their Affiliates) all information reasonably requested by, and otherwise cooperate with (including, without limitation, causing employees to assist Sellers or any of their Affiliates by requiring such employees to avail themselves for trial, depositions, interviews and other Action-related litigation endeavors) Sellers or any of their Affiliates with respect to the Business, Purchased Assets or Assumed Liabilities, in connection with regulatory compliance, indemnification claim verification, pending or threatened litigation, financial reporting and tax matters (including financial and tax audits and tax contests) and other similar business purposes. During the period required under the longer of Buyer's record retention policy or Seller's record retention policy, Buyer shall not prohibit Parentdestroy or dispose of or permit the destruction or disposition of any such documentation, Purchaser manuals, files and other information or Purchaser's Subsidiary from using and providing data except as it relates to third parties the ALSS Platform without first offering, in writing, at least sixty (60) days prior to such destruction or disposition to surrender them to Seller. Anything foregoing to the contrary not withstanding, Buyer shall not be required to disclose or deliver trade secrets or other confidential information concerning regarding the Assets ALSS Platform Software or Acquired Intellectual Property unless required by the Intellectual Property Rights Agreement or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser Services Agreement or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court orderlegal proceedings and under the type of protection provisions in the Intellectual Property Rights Agreement.
(e) Sellers agree that following the Closing Date, provided thatBuyer and its Representatives shall have reasonable access, during normal business hours, to the books, records, documentation, manuals, files and other information or data of the Selling Companies to the extent practicablethey relate to the Business or Purchased Assets or Assumed Liabilities during the period prior to the Closing Date (and shall permit such Persons to examine and copy such books, records, documentation, manuals, files and other information or data of the Selling Companies to the extent reasonably requested by such party), and shall cause the officers and employees of the Selling Companies to furnish (to Buyer or any of its Affiliates, or any regulator of Buyer or any of its Affiliates) all information reasonably requested by, and otherwise cooperate with (including, without limitation, causing employees to assist Buyer or any of its Affiliates by requiring such employees to avail themselves for trial, depositions, interviews and other Action-related litigation endeavors) Buyer with respect to the Business, Purchased Assets or Assumed Liabilities, in connection with regulatory compliance, indemnification claim verification, pending or threatened litigation, financial reporting and tax matters (including financial and tax audits and tax contests) and other similar business purposes. During the period required under the longer of Buyer's record retention policy or Seller's record retention policy, Sellers shall not destroy or dispose of or permit the destruction or disposition of any such books, records, documentation, manuals, files and other information or data without first offering, in writing, at least sixty (60) days prior to such disclosure required by law destruction or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure disposition to be made in accordance therewithsurrender them to Buyer.
Appears in 2 contracts
Samples: Asset Purchase/Liability Assumption Agreement (Homeside International Inc), Asset Purchase/Liability Assumption Agreement (Homeside Lending Inc)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller JVCo shall use its commercially reasonable endeavours with respect to Non-Controlled JVCo Subsidiaries and its best endeavours with respect to all other JVCo Subsidiaries in order to: (i) afford each of ParentPurchaser and its authorized representatives, Purchaserreasonable access, Purchaser's Subsidiary and their authorized representatives reasonable access during ordinary working hours, to all books, records, offices and other facilities of the Business JVCo and to all books and records relating to the Business and to the employees and personnel of the Businesseach JVCo Subsidiary as Purchaser may reasonably request, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they it may reasonably require (the cost of such copies to be paid by Purchaser) and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably requestrequest (the cost of furnishing such data to be paid by Purchaser). Each party Purchaser and its authorized representatives shall conduct all such inspections in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2business and operations of JVCo and JVCo Subsidiaries.
(b) On The provisions of the Confidentiality Agreements shall remain binding and after in full force and effect until the Closing, during normal business hoursexcept that the Confidentiality Agreements shall not apply to any documents prepared in connection with or proceeding before or filed with, Seller will permit each or other disclosure made to, a court, arbitration tribunal or mediation service in accordance with Section 11.8 by any party in order to enforce its rights arising in connection with the termination of Parentthis Agreement pursuant to Section 9.2. The information contained herein, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to in the Business which are not Disclosure Schedule or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior shall be subject to the date hereof Confidentiality Agreements as Information (as defined and subject to the exceptions contained therein) until the Closing and, for that purpose and to transactions or events occurring prior that extent, the terms of the Confidentiality Agreements are incorporated herein by reference. All obligations of the Purchaser under the IP Confidentiality Agreement, other than with respect to the date hereof.
(c) ParentSwiss Information, Purchaser and Purchaser's Subsidiary shall cooperate terminate simultaneously with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing Closing. Except as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretionotherwise provided herein, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller Shareholders shall, and shall cause the Business and any Business Subsidiary toJVCo, cooperate with each of Parent, Purchaser, Purchaser's JVCo Subsidiary and their authorized consultants, advisors and representatives to, treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, in conducting the opinion of legal counsel, by other requirements of law) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning JVCo and each JVCo Subsidiary to the same extent that the Purchaser is obligated to keep such investigationinformation confidential under the Confidentiality Agreement and the Shareholders shall not, and shall allow Parentcause JVCo, Purchaser, Purchaser's each JVCo Subsidiary and their authorized consultants, advisors and representatives full access not to their properties and businesses, together with full permission use such information to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reportsthe detriment of JVCo, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business JVCo Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (International Paper Co /New/)
Access; Confidentiality. The Company agrees to (a) Between provide, and shall cause its Subsidiaries to provide, Acquiror and its Representatives, from the date of this Agreement and until the Closingearlier of the Effective Time or the termination of this Agreement, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hourshours and upon reasonable prior notice from Acquiror, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, in such a manner as not to have access to and examine and make copies of all books and records of Seller relating to interfere unreasonably with the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense operation of any claim against Seller or to prosecute or prepare for business conducted by the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller Company or any of its Affiliates.
Subsidiaries to (di) Each party agrees not to destroy any files or the Company’s and its Subsidiaries’ respective properties, books, Contracts, commitments, personnel and records which are subject to this section without giving reasonable notice and (ii) such other information as Acquiror shall reasonably request with respect to the other, Company and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary its Subsidiaries and their authorized representatives respective businesses, financial condition and operations; and (including b) request its designated engineers or consultants) may at any time enter into and upon all its Subsidiaries’ respective Representatives to cooperate with Acquiror with respect to the foregoing; provided that nothing in this Agreement shall require the Company or any portion of its Subsidiaries to disclose any information to Acquiror or its Representatives that would cause a violation of or otherwise contravene any material Contract to which the Company or any of its Subsidiaries is a party, would be reasonably expected to cause a loss of privilege to the Company or any of its Subsidiaries or would constitute a violation of applicable Law; and provided, further that (x) no investigation of the Business' Company’s business shall affect any representation or any Business Subsidiary's properties (including all Real Property) warranty given by the Company hereunder, in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, Company Disclosure Letter or in the possession of certificate referenced in Section 7.2(c), or otherwise limit or affect the remedies available under this Agreement to Acquiror, (y) competitively sensitive material (reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of designated by the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, Company as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fsuch) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall may be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives provided in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this procedures set forth in Section 6.2 6.3(b) if applicable and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior permitted by applicable Law and (z) Acquiror shall not be entitled to such disclosure required by law perform any invasive or court order Parent, Purchaser destructive sampling or Purchaser's Subsidiary will give Seller testing of any kind at any location without the prior written notice approval of the nature of the law or order requiring disclosure and the disclosure Company, such approval not to be made unreasonably withheld by the Company. Acquiror shall and shall cause Acquiror’s controlled Affiliates and Representatives to keep confidential any non-public information received from the Company, its Affiliates or Representatives, directly or indirectly, pursuant to this Section 6.5 in accordance therewithwith the Confidentiality Agreement.
Appears in 2 contracts
Samples: Transaction Agreement (Chicago Bridge & Iron Co N V), Transaction Agreement (Shaw Group Inc)
Access; Confidentiality. (a) Between From the date of this Agreement and hereof to the ClosingEffective Time, Seller upon reasonable notice, the Company shall (iand shall cause each of its Subsidiaries to) afford each to the officers, employees, accountants, counsel, financing sources and other representatives of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closingaccess, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to hours during the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring period prior to the date hereof and Appointment Date, to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documentsall its properties, books, contracts, commitments and records or information transferred to Purchaser or Purchaser's Subsidiary and, during such period, the Company shall (and relating to activities shall cause each of the Business or Seller prior its Subsidiaries to) furnish promptly to the Closing Parent (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws and (b) all other information concerning its business, properties and personnel as Seller Parent may reasonably require after request. Access shall include the Closing right to conduct such environmental studies and tests as Parent, in connection its reasonable discretion, shall deem appropriate. After the Appointment Date, the Company shall provide Parent and such persons as Parent shall designate with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of all such notice, such other party may cause to be delivered to it the records intended to be destroyedinformation, at such other party's expense.
time as Parent shall request. Unless otherwise required by law and until the Appointment Date, each of Parent and Purchaser will hold and will cause all of its officers, directors, employees, financial advisors, consultants, representatives and agents (ethe "Purchaser --------- Representatives") Parent, Purchaser, Purchaser's Subsidiary to hold in strict confidence all data and their authorized representatives information obtained --------------- by them from the Company (including its designated engineers unless such information is or consultants) may at becomes publicly available without the fault of any time enter into and upon all or any portion of the Business' Purchaser Representations or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition public disclosure of such properties or information is required by law in the business conducted thereat. Such investigation may include, but need not be limited to, opinion of counsel to Parent and the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, Purchaser) and shall cause insure that the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting Purchaser Representatives do not disclose such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access information to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in others without the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect prior written consent of the BusinessCompany. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject Notwithstanding anything herein to the terms of the Confidentiality Agreementcontrary, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, shall remain in full force and effect. No investigation pursuant to this Section 6.2 and 6.5(a) shall affect any representation or warranty made by the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning Company hereunder.
(b) In the Assets or event of the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation termination of this Agreement, (ii) the use Purchaser shall, and shall cause its affiliates to, return promptly every document furnished to them by the Company or disclosure any of its representatives in connection with the Transactions and any copies thereof which have been made, and shall cause the Purchaser Representatives to whom such information that becomes available documents were furnished promptly to Parentreturn such documents an any copies thereof any of them may have made, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller documents filed with the SEC or otherwise publicly available.
(c) Prior to the Seller's representativesClosing, the Company and its accountants, counsel, agents and other representatives shall cooperate with the Purchaser by providing information about the Company which is necessary for the Purchaser and its accountants, agents, counsel and other representatives to prepare materials for inclusion or incorporation by reference in any syndication and other materials to be delivered to potential financing sources or otherwise used in connection with the Transactions (the "Disclosure Documents") and such other documents and -------------------- other reasonable requests with respect to such documents. Notwithstanding anything to the contrary in Section 6.5(a), the Purchaser may disclose, or cause its representatives to disclose, and at the request of the Purchaser, the Company shall and shall cause its Subsidiaries to disclose information concerning the Company and its Subsidiaries, and their respective businesses, assets and properties, and the transactions contemplated by this Agreement in the Disclosure Documents and to prospective financing sources in connection with the transactions contemplated hereby; provided that such source is not known by the Purchaser shall insure ------- that any party receiving the Disclosure Documents or Purchaser's Subsidiary to have a legal obligation prohibiting any prospective financing sources shall comply with the disclosure terms of such information, or Section 6.5(a) and (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithb).
Appears in 2 contracts
Samples: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
Access; Confidentiality. (a) Between From the date of this ----------------------- Agreement until the Appointment Date, the Company shall, and shall cause the ClosingCompany Subsidiaries to, Seller shall (i) afford each of give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives reasonable access at all reasonable times during normal business hours to all the Company Agreements, books, records, analysis, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books the Company Subsidiaries and records relating to the Business their accountants and to the employees accountants' work papers and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties of the Company and the Company Subsidiaries as they Parent may from time to time reasonably request. Each party will direct its employees request and use reasonable best efforts to render any assistance which make available at all reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other party representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's business, properties, prospects and personnel as Parent may reasonably request in examining or utilizing records referred to in this Section 6.2request.
(b) On and As soon as practicable after the Closingexecution of this Agreement, during the Company shall permit Parent to electronically link the Company's financial reporting system to Parent's financial reporting system ("Hyperion"). Access to -------- Hyperion will be provided by Parent's financial reporting staff and the tasks necessary to complete the link to Hyperion will be led by Parent's accounting staff, with the necessary assistance from the Company's accounting staff and other technical staff, if necessary, at no cost to the Company and provided that -------- neither such installment nor the operation or use by Parent of Hyperion shall interfere with or disrupt the normal operation of the Company's business hoursor its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Hyperion software to be installed on a computer in the Company's accounting department; provided, Seller however, that the information -------- ------- retrieved from the Company's financial reporting system will permit each not be made available to persons who are directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent; provided, Purchaserfurther, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies -------- ------- that Parent shall not use such information other than for purposes of all books and records of Seller relating to assessing the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities financial condition of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare Company for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct purposes of the business of the Business transactions contemplated by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallAgreement, and shall cause not share, provide or sell the Business and information to any Business Subsidiary to, cooperate with each third party or use the information in any manner that could reasonably be considered a restraint on competition or result in a violation of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Businessapplicable Laws. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives provided under this Section 6.4(c) shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
Access; Confidentiality. (a) Between Except for competitively sensitive information and subject to legal and contractual restrictions, the date of this Agreement and the Closing, Seller Company shall (iand shall cause its Subsidiaries to) afford each of Parentto the Bidder's officers, Purchaseremployees, Purchaser's Subsidiary accountants, counsel and their other authorized representatives reasonable access during normal business hours upon reasonable notice, throughout the period prior to all offices and other facilities the earlier of the Business and Effective Time or the Termination Date, to all its properties, offices, employees, contracts, commitments, books and records relating and any report, schedule or other document filed or received by it pursuant to the Business requirements of federal or state securities laws and shall (and shall cause each of its Subsidiaries to) furnish to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make Bidder such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such additional financial and operating data and other information concerning as to its and its Subsidiaries' respective businesses and properties as the Business as they Bidder may from time to time reasonably request. Each party The Bidder will direct make all reasonable best efforts to minimize any disruption to the businesses of the Company and the Company's Subsidiaries which may result from the requests for access, data and information hereunder. The Bidder shall afford to the Company's officers, employees, accountants, counsel and other authorized representatives reasonable access during normal business hours upon reasonable notice, to its employees officers, employees, and books and records to render the extent reasonably necessary in connection with the preparation of the Proxy Statement. No investigation pursuant to this Section 4.3 shall affect any assistance which the other party may reasonably request in examining representation or utilizing records referred to warranty in this Section 6.2Agreement of any party hereto or any condition to the obligations of the parties hereto. All requests for access and information shall be coordinated through designated senior executives of each of the parties.
(b) On The Bidder will hold all information provided under this Section 4.2 that is non-public in confidence to the extent required by, and after in accordance with, the Closingprovisions of the letter dated February 27, during normal business hours2000, Seller between Dexter and the Bidder. Except as required by law, the Company will permit each of Parenthold, Purchaserand will cause its officers, Purchaser's Subsidiary employees, accountants, counsel and their other authorized representativesrepresentatives to hold, confidential, all information and documents obtained pursuant to this Section 4.3 except for information (i) the Company can show by tangible evidence to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring been in its possession prior to your receipt thereof from the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller Bidder; provided that such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees is not to destroy any files or records which are subject to this section without giving reasonable notice to the otheranother confidentiality agreement with, and within 15 days or other obligation (legal, fiduciary or contractual) of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited secrecy to, the performance Bidder or another party; (ii) is as of soil and surface the date of this Agreement or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably hereafter becomes generally available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyedpublic, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including a disclosure by the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller Company or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary representatives; (iii) was or their representatives shall may after the date of this Agreement be subject available to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary Company on a non- non-confidential basis from a source other than Seller or the Seller's representatives, provided third party that such source is not known by Purchaser under any confidentiality obligation (legal, fiduciary or Purchaser's Subsidiary contractual) to have a legal obligation prohibiting the disclosure of Bidder regarding such information, ; or (iiiiv) is independently acquired or developed by the disclosure of such information required by law Company or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice its representatives without violating any of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithCompany's obligations under this Section 4.3(b).
Appears in 2 contracts
Samples: Merger Agreement (Life Technologies Inc), Merger Agreement (Dexter Corp)
Access; Confidentiality. (a) Between Except for competitively sensitive information as to which access, use and treatment is covered by Section 5.2(c), the date of this Agreement and the Closing, Seller Company shall (iand shall cause each of its Subsidiaries to) afford each of Parentto the officers, Purchaseremployees, Purchaser's Subsidiary accountants, counsel and their other authorized representatives of the Parent reasonable access on reasonable prior notice during normal business hours, throughout the period prior to the earlier of the Effective Time or the Termination Date, to all offices and other facilities of the Business and to all its properties, offices, employees, contracts, commitments, books and records relating (including but not limited to Tax Returns) and any report, schedule or other document filed or received by it pursuant to the Business requirements of federal or state securities laws and shall (and shall cause each of its Subsidiaries to) furnish promptly to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make Parent such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such additional financial and operating data and other information concerning as to its and its Subsidiaries' respective businesses and properties as the Business as they Parent may from time to time reasonably request. Each party The Parent and the Purchaser will direct make all reasonable efforts to minimize any disruption to the businesses of the Company and its employees Subsidiaries which may result from the requests for data and information hereunder. No investigation pursuant to render this Section 5.2(a) shall affect any assistance which the other party may reasonably request in examining representation or utilizing records referred to warranty in this Section 6.2Agreement of any party hereto or any condition to the obligations of the parties hereto.
(b) On Except for competitively sensitive information as to which access, use and after treatment is covered by Section 5.2(c), the ClosingParent shall (and shall cause each of its Subsidiaries to) afford to the officers, employees, accountants, counsel and other authorized representatives of the Company reasonable access on reasonable prior notice during normal business hours, Seller will permit each throughout the period prior to the earlier of Parent, Purchaser, Purchaser's Subsidiary and their authorized representativesthe Effective Time or the Termination Date, to have access to and examine and make copies all of all its properties, offices, employees, contracts, commitments, books and records of Seller relating (including but not limited to Tax Returns) and any report, schedule or other document filed or received by it pursuant to the Business which are not delivered to Purchaser requirements of federal or Purchaser's Subsidiary pursuant hereto state securities laws and shall (including correspondence, memoranda, books and shall cause each of account, Tax records and the likeits Subsidiaries to) and relating to events occurring prior furnish promptly to the date hereof Company such additional financial and operating data and other information as to transactions or events occurring prior its and its Subsidiaries' respective businesses and properties as the Company may from time to time reasonably request. The Company will make all reasonable efforts to minimize any disruption to the date hereofbusinesses of the Parent and its Subsidiaries which may result from the requests for data and information hereunder. No investigation pursuant to this Section 5.2(b) shall affect any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
(c) Parent, Purchaser and Purchaser's Subsidiary As promptly as possible following the date hereof the parties intend to establish an appropriate protocol which shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities remain in place until the expiration of the Business or Seller prior applicable waiting periods under the HSR Act pursuant to the Closing as Seller which each party may reasonably require after the Closing in connection with any tax determination or contractual obligations disclose to third parties or to defend or prepare for the defense a limited number of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct representatives of the business of the Business by Seller prior to the Closing or other party confidential information which is competitively sensitive in connection with any governmental investigation of Seller or any of its Affiliatesnature.
(d) Each party agrees The Parent and the Company will not, and will cause their respective officers, employees, accountants, counsel and representatives not to destroy to, use any files or records which are subject information obtained pursuant to this section without giving reasonable notice Section 5.2 for any purpose unrelated to the otherconsummation of the transactions contemplated by this Agreement. Subject to the requirements of law, pending consummation of the transactions herein contemplated, each of the Parent and the Company will keep confidential, and within 15 days of receipt of will cause their respective officers, employees, accountants, counsel and representatives to keep confidential, all information and documents obtained pursuant to this Section 5.2 unless such noticeinformation (i) was already known to it, such (ii) becomes available to it from other party may cause sources not known by it to be delivered to bound by a confidentiality obligation, (iii) is independently acquired by it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage work carried out by any of its employees or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or whom no disclosure of such information which currently has been made, (iv) is known generally to disclosed with the public prior written approval of the other party or which subsequently has come into the public domain, other than by way of disclosure in violation (v) is or becomes readily ascertainable from published information or trade sources. Upon any termination of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, each party will collect and deliver to the extent practicableother party all documents obtained by it or any of its officers, prior to such disclosure required by law or court order Parentemployees, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure accountants, counsel and the disclosure to be made representatives then in accordance therewiththeir possession and any copies thereof.
Appears in 2 contracts
Samples: Merger Agreement (Alumax Inc), Merger Agreement (Aluminum Co of America)
Access; Confidentiality. (a) Between Upon reasonable notice, Seller and Seller Parent shall permit Purchaser and its accountants, counsel and other authorized representatives to have, during the period from the date of this Agreement and to the ClosingClosing Date, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all premises, books and records relating of the Company (other than the Excluded Business, Excluded Assets and Excluded Liabilities, except to the Business and extent reasonably necessary in connection with the parties’ efforts to consummate the employees and personnel transactions contemplated by the Ancillary Agreements) upon reasonable advance notice during normal business hours, provided that such access does not interfere with the normal operations of the BusinessCompany. Seller and Seller Parent agree to furnish, (ii) permit each of Parentor cause the Company to furnish, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating operational data and other information concerning with respect to the Business Company’s business and assets as they it may from time to time reasonably request. Each party will direct its employees , provided, however, that (i) the auditors and outside accountants of Seller and Seller Parent shall not be obligated to render make work papers available unless Purchaser has signed a customary agreement relating to access to such work papers in form and substance reasonably acceptable to such auditors or accountants, as applicable, (ii) neither Seller nor Seller Parent shall be obligated to make any assistance which information available that would, in the other party may reasonably request in examining reasonable judgment of Seller or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary violate or jeopardize any applicable attorney-client or other privilege or any applicable contractual confidentiality obligation and their authorized representatives, to have (iii) such access to data and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities constituting part of the Business or Seller prior Excluded Business, Excluded Assets and Excluded Liabilities shall be limited to the Closing as Seller may data and information reasonably require after the Closing necessary in connection with any tax determination or contractual obligations Purchaser’s efforts to third parties or to defend or prepare for consummate the defense of any claim against Seller or to prosecute or prepare for transactions contemplated by the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatAncillary Agreements. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business Company, the Business, Seller, Seller Parent or Assets their Affiliates heretofore or hereafter obtained from the Company, Seller, Seller Parent, their Affiliates or their respective representatives by Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their its representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (E Trade Financial Corp), Sale and Purchase Agreement (J P Morgan Chase & Co)
Access; Confidentiality. (a) Between From the date of this Agreement and hereof to the ClosingEffective Time, Seller upon reasonable notice, the Company shall (iand shall cause each of its Subsidiaries to) afford each to the officers, employees, accountants, counsel, financing sources (and their counsel or representatives) and other representatives of Parent, Purchaserfull access, Purchaser's Subsidiary and their authorized representatives reasonable access during normal business hours during the period prior to the Appointment Date, to all offices its properties, books, contracts, commitments and records and, during such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to the Parent (and such other persons) (a) a copy of each report, schedule, registration statement and other facilities of the Business and to all books and records relating document filed or received by it during such period pursuant to the Business and to the employees and personnel requirements of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require federal securities laws and (iiib) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and all other information concerning the Business its business, properties and personnel as they Parent may from time to time reasonably request. Each party Access shall include the right to conduct such studies, demonstrations and tests of the Company's Product Software and Other Products as Parent, in its reasonable discretion, shall deem appropriate. After the Appointment Date, the Company shall provide Parent and such persons as Parent shall designate with all such information, at such time as Parent shall request. Unless otherwise required by law and until the Appointment Date, Parent and the Purchaser will direct its employees hold any such information which is non-public in confidence in accordance with, and will otherwise abide by, the provisions of the Confidentiality Agreement. No investigation pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.26.3(a) shall affect any representation or warranty made by the Company hereunder.
(b) On and after Prior to the Closing, during normal business hoursthe Company and its accountants, Seller will permit each of Parentcounsel, Purchaser, Purchaser's Subsidiary agents and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary other representatives shall cooperate with SellerParent and the Purchaser (and such other persons) by providing information about the Company which is necessary for Parent and the Purchaser and its accountants, at Seller's expenseagents, counsel and other representatives to prepare the Disclosure Documents and to satisfy other reasonable requests with respect to such documents. Notwithstanding the penultimate sentence of Section 6.3(a) above, Parent and the Purchaser may disclose, or cause their representatives to disclose, and make available at the request of Parent or the Purchaser, the Company shall and shall cause its Subsidiaries to Seller such documentsdisclose information concerning the Company and its Subsidiaries, booksand their respective businesses, records or information transferred assets and properties, and the Transactions contemplated by this Agreement in the Disclosure Documents and to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing prospective financing sources in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesTransactions contemplated hereby.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to From the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent----------------------- Effective Time, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving upon reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, the Company shall (and shall cause each of its Subsidiaries to) afford to the officers, employees, accountants, counsel, financing sources and other representatives of Parent, reasonable access, during normal business hours during the period prior to the Appointment Date, to all its properties, books, contracts, commitments and records and, during such period, the Company shall (and shall cause each of its Subsidiaries to), subject to any limitations imposed by law with respect to records of employees, furnish promptly to the Parent (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws and (b) all other information concerning its business, properties and personnel as Parent may reasonably request. Access shall include the right to conduct such environmental studies and tests as Parent, in its reasonable discretion, shall deem appropriate, subject to any limitations of, and within the rights to the Company, under the Company's leases. Prior to conducting any such studies and test, Parent shall submit to Company the names of the persons conducting the evaluations, the scope of the evaluations, and other material information concerning such studies for the Company's approval, which shall not be unreasonably withheld or delayed. After the Appointment Date, the Company shall provide Parent and such persons as Parent shall designate with all such information as is in Company's possession or control and as Parent shall be held reasonably request, at such time as Parent shall reasonably request. Unless otherwise required by Parentlaw or regulation (including stock exchange rules) and until the Appointment Date, Purchaser, Purchaser's Subsidiary Parent and their representatives Purchaser will hold any such information which is non-public in confidence in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business (except as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information be required by law or court order, provided that, to by any listing agreement with or by the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice listing rules of the nature London Stock Exchange) and, in the event this Agreement is terminated for any reason, Parent shall promptly return or destroy such information in accordance with paragraph (6) of the law Confidentiality Agreement. No investigation pursuant to this Section 6.6 shall affect any representation or order requiring disclosure and warranty made by the disclosure to be made in accordance therewithparties hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Rose Acquisition Corp), Merger Agreement (State of the Art Inc /Ca)
Access; Confidentiality. (a) Between Except as required pursuant to any existing confidentiality agreement or obligation entered into prior to the date hereof by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice (excluding, for the avoidance of doubt, confidentiality agreements entered into in connection with any Acquisition Proposal), a summary of the material terms of which the Company shall provide Parent upon any request for information by Parent that is subject to such confidentiality agreement, and subject to applicable law or decree, from the date of this Agreement and until the Closing, Seller the Company shall, and shall cause the Company Subsidiaries to, (i) afford each of give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives upon reasonable prior notice to the Company, reasonable access during normal business hours to all the Company Agreements, books, records, analysis, projections, plans, personnel, offices and other facilities and properties of the Business Company and the Company Subsidiaries and, subject to all books customary reasonable request, their accountants and records relating to the Business accountants' work papers and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties and Company Agreements of the Company and the Company Subsidiaries as they Parent may from time to time reasonably request. Each party will direct its employees request and use commercial best efforts to render any assistance which make available at reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other party representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's business, properties, prospects and personnel as Parent may reasonably request in examining or utilizing records referred to in this Section 6.2request.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating With respect to the Business which are not delivered information disclosed pursuant to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondencethis Section 6.5, memorandathe parties shall comply with, books and shall use commercial best efforts to cause their respective representatives to comply with, all of account, Tax records and their obligations under the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofConfidentiality Agreement.
(c) As soon as practicable after the execution of this Agreement, the Company shall permit Parent to implement an interface to the Company's financial reporting system which will allow the transfer of general ledger data to Parent's financial reporting system (the "Reporting System"). Access to the Reporting System will be provided by Parent's financial reporting staff and the tasks necessary to complete the interface to the Reporting System will be led by Parent's accounting staff, Purchaser with the necessary assistance from the Company's accounting staff and Purchaser's Subsidiary shall cooperate with Sellerother technical staff, if necessary, at Sellerno cost to the Company and provided that neither such installment nor the operation or use by Parent of the Reporting System shall interfere with or disrupt the normal operation of the Company's expensebusiness or its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Reporting System software to be installed on a computer in the Company's accounting department; provided, however, that the information retrieved from the Company's financial reporting system will be made available only to the Office of Corporate Controller of Parent (it being represented by Parent that such Persons are not directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent); provided, further, that Parent shall not use such information other than for diligence purposes of assessing the financial condition of the Company and the Company Subsidiaries for purposes of the transactions contemplated by this Agreement, and make available shall not share, provide or sell the information for any commercial purpose (other than the Transactions) to Seller such documents, books, records any third party or use the information transferred to Purchaser in any manner that could reasonably be considered a restraint on competition or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing result in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense violation of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliatesapplicable laws.
(d) Each party agrees not to destroy any files No investigation heretofore conducted or records which are subject conducted pursuant to this section without giving reasonable notice to Section 6.5 shall affect any representation or warranty made by the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expenseparties hereunder.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 2 contracts
Samples: Merger Agreement (Orbitz Inc), Merger Agreement (Cendant Corp)
Access; Confidentiality. (a) Between From the date of this Agreement until the Effective Time, the Company shall, and shall cause the ClosingCompany Subsidiaries to, Seller shall (ia) afford each of Parentupon reasonable prior notice, give Parent and Purchaser, Purchaser's Subsidiary their officers and a reasonable number of their employees and their authorized representatives Representatives, reasonable access during normal business hours to all the Company Agreements, contracts, books, records, analysis, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books the Company Subsidiaries and records relating to the Business their accountants and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require accountants' work papers and (iiib) furnish each of Parent, Parent and Purchaser and Purchaser's Subsidiary on a timely basis with such financial and operating data and other information concerning with respect to the Business business, properties and Company Agreements of the Company and the Company Subsidiaries as they Parent and Purchaser may from time to time reasonably request. Each party will direct request and use its employees reasonable efforts to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, make available at all reasonable times during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating hours to the Business which are not delivered to officers, employees, accountants, counsel, financing sources and other representatives of Parent and Purchaser or Purchaser's Subsidiary pursuant hereto the appropriate individuals (including correspondencemanagement personnel, memorandaattorneys, books of account, Tax records accountants and the likeother professionals) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities for discussion of the Business Company's business, properties, prospects and personnel as Parent or Seller prior to the Closing as Seller Purchaser may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatrequest. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the The terms of the Confidentiality Agreement provided, however, that following the Closing, shall apply to any information provided to Parent or Purchaser pursuant to this Section 6.2. No investigation heretofore conducted or conducted pursuant to this Section 6.2 and shall affect any representation or warranty made by the Confidentiality Agreement parties hereunder. Notwithstanding anything to the contrary set forth herein, the Company shall not prohibit Parentbe required to provide access to, Purchaser or Purchaser's Subsidiary from using and providing to third parties disclose information, where such information concerning access or disclosure would jeopardize the Assets attorney-client privilege of the Company or its Subsidiaries or contravene any applicable law or contract entered into prior to the Business as it may deem appropriate. The foregoing date of this Agreement (provided that, in such circumstance, the Company shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use cooperate with Parent to implement a procedure to permit access to or disclosure of such information which currently is known generally in a manner that would not reasonably be expected to jeopardize the public attorney/client privilege or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of contravene such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by applicable law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithcontract).
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Access; Confidentiality. (a) Between the date of this Agreement hereof and the Closing, the Seller Parties shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives reasonable full and complete access to Seller Parties' employees, medical staff, and other agents and representatives and during normal working hours to all books, records, offices and other facilities of the Business Seller Parties and shall use their best efforts to all books cause Sherman Oaks to afford to Purchaser Parties similar access to its pexxxxxxx and records relating to the Business Assets and to the employees and personnel of the Business, (ii) permit each of Parent, the Purchaser and Purchaser's Subsidiary Parties to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, the Purchaser and Purchaser's Subsidiary Parties with such financial and operating data and other information concerning related to the Business Hospital, the Business, the Seller Parties and their respective Subsidiaries as they the Purchaser Parties may from time to time reasonably request. Each party The Purchaser Parties and their authorized representatives shall conduct all such inspections under the supervision of personnel of the Seller Parties in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request business and operations of the Seller Parties and in examining or utilizing records referred a manner as to in maintain the confidentiality of this Section 6.2Agreement.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to The Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary Parties and their authorized representatives (including its their designated engineers or engineer, architects, surveyors and/or consultants) may may, subject to Sherman Oaks's approval, upon reasonable notice and at any time enter into and upon entex xxxx xxx xxxn all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) Property in order to investigate and assess, as Parent, the Purchaser and Purchaser's Subsidiary Parties deem necessary or appropriate in their sole and absolute discretion, the condition (including the structural and environmental condition condition) of such properties or the business conducted thereatAssets. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. The Seller shall, and Parties shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives in conducting such investigation, shall use their best efforts to cause Sherman Oaks to allow Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives repxxxxxxxtives full access to their properties the Assets and businessesthe Business, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives all information maintained by the Seller Parties and related to the condition of the Assets and the Business, including the Real Property, and all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to the Seller or any Business Subsidiary Parties or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear their properties and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesbusinesses.
(fc) Any The provisions of Confidentiality Agreement, dated May 5, 2005, (which Seller Parties agree to be bound by as if they were original signatories thereto) (the "Confidentiality Agreement") shall remain binding and in full force and effect until the Closing. Notwithstanding anything to the contrary contained herein or in the Confidentiality Agreement, the confidentiality obligations as they relate to the transactions contemplated by this Agreement shall not apply to the purported or claimed Federal income tax treatment of the transactions (the "Tax Treatment") or to any fact that may be relevant to understanding the purported or claimed Federal income tax treatment of the transactions (the "Tax Structure"), and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the Tax Treatment and Tax Structure of the transactions contemplated by this Agreement and any materials of any kind (including any tax opinions or other tax analyses) that relate to the Tax Treatment or Tax Structure. In addition, each party hereto acknowledges that it has no proprietary or exclusive rights to any tax matter or tax idea related to the transactions contemplated by this Agreement. The preceding sentence is intended to ensure that the transactions contemplated by this Agreement shall not be treated as having been offered under conditions of confidentiality for purposes of the Confidentiality Regulations and shall be construed in a manner consistent with such purpose. The information regarding contained herein, in the Business Schedules hereto or Assets heretofore or hereafter obtained from Seller delivered to the Purchaser Parties or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than are incorporated herein by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithreference.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Medical Properties Trust Inc), Purchase and Sale Agreement (Medical Properties Trust Inc)
Access; Confidentiality. (a1) Between Except for competitively sensitive information and subject to legal and contractual restrictions, the date of this Agreement and the Closing, Seller Company shall (iand shall cause its Subsidiaries to) afford each of Parentto the Bidder's officers, Purchaseremployees, Purchaser's Subsidiary accountants, counsel and their other authorized representatives reasonable access during normal business hours upon reasonable notice, throughout the period prior to all offices and other facilities the earlier of the Business and Effective Time or the Termination Date, to all its properties, offices, employees, contracts, commitments, books and records relating and any report, schedule or other document filed or received by it pursuant to the Business requirements of federal or state securities laws and shall (and shall cause each of its Subsidiaries to) furnish to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make Bidder such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such additional financial and operating data and other information concerning as to its and its Subsidiaries' respective businesses and properties as the Business as they Bidder may from time to time reasonably request. Each party The Bidder will direct make all reasonable best efforts to minimize any disruption to the businesses of the Company and the Company's Subsidiaries which may result from the requests for access, data and information hereunder. The Bidder shall afford to the Company's officers, employees, accountants, counsel and other authorized representatives reasonable access during normal business hours upon reasonable notice, to its employees officers, employees, and books and records to render the extent reasonably necessary in connection with the preparation of the Proxy Statement. No investigation pursuant to this Section 4.3 shall affect any assistance which the other party may reasonably request in examining representation or utilizing records referred to warranty in this Section 6.2Agreement of any party hereto or any condition to the obligations of the parties hereto. All requests for access and information shall be coordinated through designated senior executives of each of the parties.
(b2) On The Bidder will hold all information provided under this Section 4.2 that is non-public in confidence to the extent required by, and after in accordance with, the Closingprovisions of the letter dated February 27, during normal business hours2000, Seller between Dexter and the Bidder. Except as required by law, the Company will permit each of Parenthold, Purchaserand will cause its officers, Purchaser's Subsidiary employees, accountants, counsel and their other authorized representativesrepresentatives to hold, confidential, all information and documents obtained pursuant to this Section 4.3 except for information (i) the Company can show by tangible evidence to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring been in its possession prior to your receipt thereof from the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller Bidder; PROVIDED that such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees is not to destroy any files or records which are subject to this section without giving reasonable notice to the otheranother confidentiality agreement with, and within 15 days or other obligation (legal, fiduciary or contractual) of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited secrecy to, the performance Bidder or another party; (ii) is as of soil and surface the date of this Agreement or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably hereafter becomes generally available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyedpublic, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including a disclosure by the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller Company or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary representatives; (iii) was or their representatives shall may after the date of this Agreement be subject available to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary Company on a non- non-confidential basis from a source other than Seller or the Seller's representatives, provided third party that such source is not known by Purchaser under any confidentiality obligation (legal, fiduciary or Purchaser's Subsidiary contractual) to have a legal obligation prohibiting the disclosure of Bidder regarding such information, ; or (iiiiv) is independently acquired or developed by the disclosure of such information required by law Company or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice its representatives without violating any of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithCompany's obligations under this Section 4.3(b).
Appears in 1 contract
Samples: Merger Agreement (Invitrogen Corp)
Access; Confidentiality. (a) Between the date of this Agreement and Prior to the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller Sellers shall, and shall cause the Business and any Business Subsidiary PEPL Companies to, cooperate with each of Parentpermit Acquiror and its financing sources to have reasonable access, Purchaserduring normal business hours and upon reasonable advance notice, Purchaser's Subsidiary and their authorized representatives in conducting such investigationto the properties, shall allow Parentbooks, Purchaserrecords, Purchaser's Subsidiary and their authorized representatives full access accountants (subject to their properties availability) and businesses, together with full permission executive-level personnel of Sellers and the PEPL Companies relating to conduct such investigationthe Business, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf offurnish, or cause to be furnished, to Acquiror, all other information concerning the Business or the PEPL Companies that is available as Acquiror may reasonably request. The foregoing shall entitle Acquiror to conduct Phase I environmental assessments at the properties of the PEPL Companies consistent with ASTM Standard E1527-97 prior to November 16, 1998. Acquiror shall coordinate the schedule of such assessments with Sellers. In connection with any access contemplated by this Section 5.2(a), Acquiror's representatives shall cooperate with Sellers' and PEPL's representatives and shall use their reasonable best efforts to minimize any disruption of the Business.
(b) Except as hereinafter provided, without the prior written consent of Acquiror or Sellers, as appropriate, who delivered such information, Evaluation Material will be held in confidence and not disclosed by the possession receiving party (the "Recipient") or its Representatives or used by the Recipient or its Representatives other than directly or indirectly in connection with consideration of this Agreement or in connection with the performance of the agreements contemplated by Section 5.11 of this Agreement. Except as otherwise expressly provided in this Agreement, the Recipient further agrees to disclose Evaluation Material only to its Representatives who need to know the Evaluation Material to evaluate the transactions contemplated by this Agreement, or to accomplish the purpose of the agreements contemplated pursuant to Section 5.11 of this Agreement, and who are informed of its confidential nature and agree to be bound by the terms of this Section. The Recipient agrees to be fully responsible for any breach of this provision by any of its Representatives. In addition, Acquiror will not provide Evaluation Material to any employee of Acquiror engaged in procurement, contracting of or reasonably available management of pipeline services or pipeline-related regulatory activities.
(c) In addition, Acquiror and Sellers each agree that it will not for a period of 24 months from the date of the signing of this Agreement, except as contemplated by Section 5.9(a), employ or attempt to Seller employ or any Business Subsidiary divert an employee of the other party or any of their engineersits affiliates, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement neither Acquiror nor Sellers shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary be prohibited from (ia) employing any such employee who contacts Acquiror or Seller, as applicable, on his or her own initiative and without any direct or indirect solicitation by Acquiror or Seller, as applicable, and (b) conducting generalized solicitations for employees (which solicitations are not specifically targeted at employees of the other party) through the use of media advertisements, professional search firms or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithotherwise.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the ClosingAfter reasonable notice provided by Buyer, Seller shall (i) afford each of Parentgive, Purchaserand shall authorize and instruct its counsel, Purchaserits accountants and its other agents and representatives to give to Buyer and Buyer's Subsidiary and their authorized representatives reasonable access to all offices counsel, accountants and other facilities of representatives full access during normal business hours to the Business Property and to all books of Seller's books, contracts and records relating related to the Business Property, and to the employees shall furnish such information and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records materials related to the Property as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may Buyer from time to time reasonably may request. Each party will direct , provided, however that in no event shall (i) such inspections or tests materially disrupt or disturb the operation of the Property, or (ii) Buyer or its employees to render any assistance which agents, representatives and consultants drill or bore on or through the other party may reasonably request in examining surface of the Real Property or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Improvements without Seller's expenseprior written consent, and make available to Seller such documents, books, records which consent may be given or information transferred to Purchaser or Purchaserwithheld in Seller's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion. After making such tests and inspections, Buyer shall promptly restore the environmental Property to the condition that existed prior to making such tests and inspections (which obligation shall survive the Closing or any termination of this Agreement). In the event that the Agreement is terminated for any reason other than Seller's default, Buyer shall promptly deliver to Seller copies of all written reports, studies and results of tests and investigations obtained or conducted by Buyer with respect to the Property (which obligation shall survive any termination of this Agreement) provided that Seller first reimburses Buyer for the cost of obtaining such properties reports, studies and results. Buyer shall not communicate directly with Target absent the presence of a representative of Seller and all inquiries concerning Target or the business conducted thereatProperties shall be directed to Seller. Such investigation may includeAll information so learned by Buyer shall be kept in confidence pending the Closing. If the Closing does not take place for any reason, but need not be limited to, the performance Buyer shall keep such information in confidence thereafter (unless and until such information otherwise is or becomes public knowledge through no fault of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, Buyer) and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available promptly return to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted materials so provided by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement Seller; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement foregoing shall not prohibit Parent, Purchaser or Purchaser's Subsidiary Buyer from using and providing to third parties utilizing such information concerning or materials in connection with the Assets exercise of its rights hereunder. Buyer shall indemnify, defend and hold harmless Seller from any damage or injury caused by Buyer's breach of its covenants herein contained or Buyer's or Buyer's agents' gross negligence or willful misconduct (but specifically excluding such party's simple negligence) while reviewing Seller's books and records at the Business as it may deem appropriateProperty. The foregoing provisions shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) survive the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation termination of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Prior to the date Closing, Seller shall permit the Purchaser Parties and their representatives to have reasonable access, during regular business hours and upon reasonable advance notice to Seller, to the properties, appropriate key personnel and Books and Records of the Acquired Companies (including by providing to the Purchaser Parties at their request copies of all required annual and quarterly statutory financial statements filed with the Department following the filing thereof) and, to the extent relating solely to the Acquired Companies, properties, appropriate key personnel and books and records of Seller and its Subsidiaries, to the extent not prohibited by applicable Law or Seller's or the Acquired Companies' privacy policies (as may be amended or modified from time to time), for any reasonable purpose relating to this Agreement; provided that any Books and Records or other information that is subject to an attorney-client or other legal privilege or obligation of confidentiality or non-disclosure shall not be made so accessible. In exercising its rights hereunder, the Purchaser Parties shall conduct themselves so as not to unreasonably interfere in the conduct of Seller's or the Acquired Companies' business.
(i) The Purchaser Parties acknowledge that the information and access provided to it pursuant to Section 5.1(a) shall be subject to the terms and conditions of the Confidentiality Agreement. As of the Closing, the Purchaser Parties' obligations under the Confidentiality Agreement related to (i) non-use, non-disclosure and return or destruction of “Evaluation Material” (as defined in the Confidentiality Agreement) to the extent related to the Acquired Companies shall terminate and (ii) non-solicitation and any applicable non-hire provisions shall terminate with respect to the Transferred Employees. All other provisions of the Confidentiality Agreement shall remain in full force and effect in accordance with their terms.
(ii) From and after the Closing, all proprietary or confidential information that pertains to the Acquired Companies and that is in the possession of Seller or its Affiliates prior to the Closing shall be kept confidential by Seller, except (A) pursuant to any Governmental Order, as required in any Action, or as otherwise required by applicable Law, (B) for information that is or becomes generally available to the public other than as a result of a breach of this Agreement Section 5.1(b)(ii), (C) to the extent that such information is, following the Closing, acquired by Seller or its Subsidiaries on a non-confidential basis other than as a result of a breach of this Section 5.1(b)(ii)), (D) information that is disclosed following receipt of the written consent of the Purchaser Parties to such disclosure being made or (E) to enforce its rights and remedies under this Agreement. This Section 5.1(b)(ii) is not intended to restrict the ability of Seller or any of its Affiliates to engage in any business activity that is or may in the future become competitive with any of the businesses conducted or that may be conducted by the Purchaser Parties or any of their respective Affiliates (including, following the Closing, the Acquired Companies).
(c) Following the Closing Date, without limiting the obligations of the Purchaser Parties to provide access pursuant to Section 2.3(b), to the extent not prohibited by applicable Law or the Acquired Companies' privacy policies (as may be amended or modified from time to time post-Closing), the Purchaser Parties shall (i) permit Seller and its Subsidiaries, during regular business hours and upon reasonable advance notice to the Purchaser Parties, through their representatives, the right to examine and make copies of the Books and Records and otherwise reasonably cooperate with Seller and its Subsidiaries, including by making Transferred Employees with relevant knowledge of the applicable matter available upon reasonable request, for the purpose of preparing or examining Seller's and its Subsidiaries' regulatory and Tax filings and financial statements and the conduct of any third party litigation or dispute resolution (not involving the Purchaser Parties or any of their respective Affiliates), or regulatory dispute, whether pending or threatened, concerning the business of the Acquired Companies prior to the Closing; provided that any Books and Records or other information that is subject to an attorney-client or other legal privilege or obligation of confidentiality or non-disclosure shall not be made so accessible (provided that in any such event the Purchaser Parties shall notify Seller in reasonable detail of the circumstances giving rise to any such privilege or obligation and use commercially reasonable efforts to seek to permit disclosure of such information, to the extent possible, in a manner consistent with such privilege or obligation), and (ii) maintain the Books and Records for the foregoing examination and copying for a period of not less than ten (10) years following the Closing Date. Access to the Books and Records shall be at Seller's sole cost and expense and may not unreasonably interfere with the conduct of the Purchaser Parties' or any of their respective Affiliates' businesses.
(d) Following the Closing Date, to the extent not prohibited by applicable Law or Seller's privacy policies (as may be amended or modified from time to time post-Closing), Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary permit the Purchaser Parties and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the ClosingAcquired Companies, during normal regular business hourshours and upon reasonable advance notice to Seller, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and through their authorized representatives, the right to have access to and examine and make copies of all books the Seller Books and records Records and otherwise reasonably cooperate with the Purchaser Parties and the Acquired Companies, including by making employees of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate its Subsidiaries with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities relevant knowledge of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare applicable matter available upon reasonable request, for the defense purpose of any claim against Seller preparing or to prosecute or prepare for examining the prosecution of claims against third parties by Seller relating to Acquired Companies' regulatory and Tax filings and financial statements and the conduct of the business of the Business by Seller prior to the Closing any third party litigation or in connection with any governmental investigation of dispute resolution (not involving Seller or any of its Affiliates.
(d) Each party agrees not ), or regulatory dispute, whether pending or threatened, concerning the business of the Acquired Companies prior to destroy the Closing; provided that any files Seller Books and Records or records which are other information that is subject to this section without an attorney-client or other legal privilege or obligation of confidentiality or non-disclosure shall not be made so accessible (provided that in any such event Seller shall notify the Purchaser Parties in reasonable detail of the circumstances giving rise to any such privilege or obligation and use commercially reasonable notice efforts to seek to permit disclosure of such information, to the otherextent possible, in a manner consistent with such privilege or obligation), and within 15 days (ii) maintain the Seller Books and Records for the foregoing examination and copying for a period of receipt not less than ten (10) years following the Closing Date. Access to the Seller Books and Records shall be at the Purchaser Parties' sole cost and expense and may not unreasonably interfere with the conduct of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other partySeller's expenseor its Subsidiaries' businesses.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may Effective at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally Seller hereby assigns to the public Purchaser Parties the right under the Seller Confidentiality Agreements to enforce the non-use, non-disclosure and return or which subsequently has come into destruction of Evaluation Material (as such term is defined in the public domain, other than by way of disclosure in violation of this Agreement, (iiSeller Confidentiality Agreements) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicablerelated to the Acquired Companies and the non-solicitation and any applicable non-hire provisions with respect to the Transferred Employees, prior to such disclosure required by law or court order Parentin each case, Purchaser or Purchaser's Subsidiary will give Seller prior written notice for the benefit of the nature Acquired Companies; provided that Seller retains all other rights and remedies thereunder. Seller expressly disclaims any representation or warranty as to the enforceability of any of the law or order requiring disclosure and the disclosure to be made in accordance therewithassigned provisions.
Appears in 1 contract
Access; Confidentiality. (a) Between At the date reasonable request of this Agreement and the ClosingBuyer, Seller shall, and shall cause the Company and its Subsidiaries to, prior to the Closing give or cause to be given to Buyer and its Representatives reasonable access during normal business hours to (i) afford each of Parentany and all premises, Purchaserproperties, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Businessfiles, (ii) permit each of Parentbooks, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parentrecords, Purchaser and Purchaser's Subsidiary with such documents, financial and operating data and other information concerning of the Business as they may from time Company and its Subsidiaries, and to time reasonably requestthe extent related to the Business, Seller and its Subsidiaries (other than the Company and its Subsidiaries), and (ii) the Representatives of the Company and its Subsidiaries, and to the extent related to the Business, Seller and its Subsidiaries (other than the Company and its Subsidiaries). Each party will direct its employees Notwithstanding the foregoing, prior to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after consummation of the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary may exclude Buyer’s and their authorized representatives, to have such Representatives’ access to and examine and make copies of all books and (x) personnel records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller Company or any of its Affiliates.
their respective Subsidiaries relating to individual performance, evaluation records or medical histories, (dy) Each party agrees not to destroy any files information or records materials the disclosure of which are subject to this section without giving reasonable notice to would result in the otherviolation of applicable antitrust and competition Laws or confidentiality obligations of Seller, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all Company or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assesstheir respective Subsidiaries; provided, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. that Seller shall, and shall cause the Business Company and any Business Subsidiary its Subsidiaries to, cooperate use commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Laws, including by entering into a joint defense or similar agreement with each Buyer if doing so could permit such disclosure without the violation of Parentapplicable Law and use commercially reasonable efforts to obtain authorization to disclose to Buyer any information or materials subject to such confidentiality obligations, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access or (z) any information subject to their properties and businesses, together with full permission to conduct such investigationattorney-client privilege or that constitutes attorney work product; provided that Seller shall, and shall provide cause the Company and its Subsidiaries to, use commercially reasonable efforts to Parentallow for such access or disclosure to the maximum extent that does not result in a loss of attorney-client privilege, Purchaserincluding by entering into a joint defense or similar agreement with Buyer if doing so could permit the disclosure of the foregoing information without the waiver of such attorney-client privilege. If any information or material is withheld pursuant to clause (ii) or (iii) of the foregoing sentence, Purchaser's Subsidiary Seller shall (to the maximum extent possible without violating such clause) inform Buyer as to the general nature of what is being withheld. Buyer shall conduct its investigation in a manner designed to avoid any unreasonable interference with the operations of Seller, the Company and their authorized representatives respective Subsidiaries.
(b) The provisions of the confidentiality agreement, dated November 15, 2012, between Islanders and Seller (the “Confidentiality Agreement”), shall survive the execution of this Agreement and shall apply with respect to all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared information made available to Buyer and its Representatives by or on behalf ofof Seller (or, prior to the Closing, the Company or any of the Company’s Subsidiaries) under this Agreement; provided that with respect to Company Data, the terms of Section 5.1(d) shall apply and govern from and after the consummation of the Closing.
(c) Neither Seller nor the Company or any of its Subsidiaries makes any representation or warranty as to the accuracy or completeness of any information provided pursuant to this Section 5.1, and 62587121_2 SV\1145690.24 Buyer may not rely on the accuracy or completeness of any such information, in each case other than as expressly set forth in Seller’s representations and warranties set forth in Articles II and III of this Agreement.
(d) Seller acknowledges and agrees, on behalf of itself and its controlled Affiliates, that, from and after the possession consummation of the Closing, all Company Data shall be deemed the exclusive property of the Company. Seller agrees, on behalf of itself and its controlled Affiliates, from and after the consummation of the Closing, to treat all Company Data as confidential, to preserve the confidentiality thereof, not to duplicate or reasonably use or disclose to any Person such Company Data and to cause its Affiliates and Representatives who have had access to Company Data to keep confidential and not to use any such Company Data (provided that Seller shall have the right to disclose Company Data to its controlled Affiliates and Representatives who have a need to know such information solely for the purposes set forth in clause (iii), (iv) or (v) below and who agree to be bound by the terms of this Section 5.1(d)), (i) unless such Company Data is now or is hereafter disclosed, through no prohibited act or omission of Seller or its controlled Affiliates or Representatives, including any act or omission in violation of this Agreement or any Ancillary Agreement, in a manner making it available to the general public, (ii) unless such Company Data is received from a third Person not known (after reasonable inquiry) by Seller or its controlled Affiliates to be subject to any contractual, legal, fiduciary or other obligation of confidentiality with respect to such information, (iii) unless such Company Data is required by Law or legal process to be disclosed (in which event Seller shall (unless prohibited by Law or legal process or clause (i), (iv)(x) or (iv)(y) applies) inform Buyer in advance of any such required disclosure and cooperate with Buyer in all reasonable ways in obtaining a protective order or other protection in respect of such required disclosure, and shall in any event limit such disclosure to the extent reasonably possible while still complying with such requirements), (iv) solely to the extent reasonably necessary to prepare Seller’s or its controlled Affiliates’ (x) financial statements, (y) Tax Returns and statements, forms and schedules in connection therewith or (z) reports, schedules, forms, proxy statements, registration statements and other documents required to be filed by Seller or any Business Subsidiary of its controlled Affiliates with the SEC or any other Governmental Authorities of competent jurisdiction or (v) unless such Company Data is used or disclosed solely to the extent reasonably necessary (x) to perform any obligation, or assert any rights, under any provision of this Agreement, the 2011 Management Services Agreement (as amended as of the Closing Date by the Transition Services Agreement), the 2011 Pro Rate Agreement (as amended as of the Closing Date by the E190 Agreement), any other Ancillary Agreement, any other agreement set forth on Section 5.12 of the Seller Disclosure Schedule or the Transactions, or (y) to prosecute, defend or settle (A) any Proceeding (including any Tax Proceeding) between the parties hereto or any of their engineers, consultants or agents and all other information respective controlled Affiliates relating to environmental this Agreement, any agreement referred to above in this clause (v) or the Transactions or (B) any Third Party Claim as provided in Section 8.2(f) or the matters set forth in respect Item 1 of Schedule C hereto. Seller agrees, on behalf of itself and its controlled Affiliates, after the consummation of the BusinessClosing, to safeguard the Company Data and to protect it against disclosure (except as provided above), misuse, espionage, loss and theft using the same efforts as Seller and such controlled Affiliates use to safeguard their own information or data of a similar nature. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives Buyer shall be subject entitled to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives injunctive relief to enforce this Section 5.1(d) in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith10.18 hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Republic Airways Holdings Inc)
Access; Confidentiality. (a) Between the date hereof until the expiration of this Agreement the Commitment Period (it being understood that the access provisions hereof shall no longer remain effective with respect to Assets and the ClosingUnrelated Sellers for which an Applicable Closing shall have occurred), Seller each existing Adeptus Party shall (iA) afford each of Parent, Purchaser, Purchaser's Subsidiary MPT and their its authorized representatives reasonable access to such Adeptus Parties and to all books, records, offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, such Adeptus Parties; (iiB) permit each of Parent, Purchaser MPT and Purchaser's Subsidiary its authorized representatives to make such inspections and to make copies of such books and records as they may reasonably require and require, in each case subject to compliance with applicable confidentiality requirements; (iiiC) furnish each of Parent, Purchaser MPT and Purchaser's Subsidiary its authorized representatives with such financial and operating data and other information concerning related to the Business Real Properties, the Business, and such Adeptus Parties as they the MPT Parties may from time to time reasonably request. Each party will direct its employees ; and (D) use their commercially reasonable efforts to render any assistance which cause all Unrelated Sellers to permit the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary existing MPT Parties and their authorized representatives (including its their designated engineers or engineers, architects, surveyors and/or consultants) may at any time ), upon reasonable notice to enter into and upon all or any portion of any of the Business' or any Business Subsidiary's properties (including all Real Property) Properties in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary such MPT Parties deem necessary or appropriate in their sole and absolute discretion, the environmental condition Real Properties and to complete their due diligence review with respect to the satisfaction all of such properties or the business conducted thereatconditions set forth in Section 7.2. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallThe existing Adeptus Parties shall cooperate, and shall use commercially reasonable efforts to cause the Business and any Business Subsidiary toUnrelated Sellers to cooperate, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary the existing MPT Parties and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigationinvestigations, and shall provide (or use commercially reasonable efforts to Parent, Purchaser, Purchaser's Subsidiary cause the Unrelated Sellers to provide) to such MPT Parties and their authorized representatives all plansinformation maintained by such Adeptus Parties or provided by the Unrelated Sellers to such Adeptus Parties and related to their due diligence review and other matters referenced above. MPT shall indemnify, soil defend and hold harmless the existing Adeptus Parties from and against all demands, claims, losses, damages, costs and expenses asserted against or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared incurred by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary such Adeptus Parties or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction them arising out of an inspection conducted or resulting from any physical damage to the applicable Real Properties caused by Purchaser any of the MPT Parties’ or Purchaser's representativestheir respective consultants’ or agents’ inspections thereof.
(fb) Any Notwithstanding any provision of the 2013 Master Funding Agreement to the contrary, the provisions of the Confidentiality Agreement dated as of July 13, 2012 (the "Confidentiality Agreement") shall remain binding and in full force and effect until the Completion of the Real Property that is the subject of the Final Closing. The information regarding contained herein, in the Business Schedules or Assets heretofore or hereafter obtained from Seller delivered to MPT or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than are incorporated herein by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithreference.
Appears in 1 contract
Samples: Master Funding and Development Agreement (Adeptus Health Inc.)
Access; Confidentiality. (a) Between Seller and Seller Parent agree to permit Purchaser and its accountants, counsel and other authorized representatives to have, during the period from the date of this Agreement to the Closing Date, access to the premises, books and the Closingrecords, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives of each Subject Company and FG that relate to its business (but, with respect to FG, only the FG Transferred Business) upon reasonable advance notice during normal business hours, provided that such access to all offices and other facilities does not interfere with the normal operations of the Business Subject Companies and FG. Seller and Seller Parent agree to all books cause the Subject Companies and records relating FG to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, furnish Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating operational data and other information concerning with respect to their respective businesses and properties (but, with respect to FG, only the Business FG Transferred Business) as they Purchaser may from time to time reasonably request. Each party will direct its employees to render any assistance which , provided, however, that (i) the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On auditors and after the Closing, during normal business hoursoutside accountants of Seller, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary the Subject Companies and their authorized representatives, FG shall not be obligated to have make work papers available to Purchaser unless Purchaser has signed a customary agreement relating to access to such work papers in form and examine substance reasonably acceptable to such auditors or accountants, as applicable, and (ii) none of Seller, Seller Parent, the Subject Companies or FG shall be obligated to make copies of all books and records of Seller relating to the Business which are not delivered any information available to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondencethat would, memoranda, books of account, Tax records and in the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation reasonable judgment of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Seller Parent, violate or jeopardize any applicable attorney-client or other privilege or any applicable contractual confidentiality obligation. Without limitation of the foregoing, Seller shall deliver to Purchaser, or make available for printing by Purchaser's Subsidiary , within ten (10) days after the date of this Agreement, true and their authorized representatives complete copies of each lease (including its designated engineers or consultantsas amended to date) may at any time enter into and upon all pursuant to which FG or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatSubject Company leases real property. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding any of the Business or Assets Subject Companies and FG heretofore or hereafter obtained from Seller, Seller Parent, the Subject Companies, FG, their affiliates or their respective representatives by Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Washington Mutual Finance Corp)
Access; Confidentiality. (a) Between From the date of this Agreement and until the Stock Purchase Closing, Seller the Company shall, and shall cause the Company's Subsidiaries to, (i) afford each of give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives reasonable access at all reasonable times during normal business hours to all the agreements, contracts, books, records, analyses, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books its Subsidiaries and records relating to the Business their accountants, and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties of the Company and its Subsidiaries as they Parent may from time to time reasonably request in writing and use reasonable best efforts to make available at all reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's and its Subsidiaries' business, properties, prospects and personnel as Parent may reasonably request. Each party will direct of Parent, Merger Sub, the Company and Majority Shareholder shall hold, and shall cause its employees Representatives to render any assistance which hold non-public information confidential and in accordance with the other party may reasonably request in examining or utilizing records referred to in this Section 6.2terms of the Confidentiality Agreements.
(b) On and As soon as practicable after the Closingexecution of this Agreement, during the Company shall permit Parent to electronically link the Company's financial reporting system to Parent's financial reporting system ("Hyperion"). Access to -------- Hyperion will be provided by Parent's financial reporting staff and the tasks necessary to complete the link to Hyperion will be led by Parent's accounting staff, with the necessary assistance from the Company's accounting staff and other technical staff, if necessary, at no cost to the Company and provided that neither such installment nor the operation or use by Parent of Hyperion shall interfere with or disrupt the normal operation of the Company's business hoursor its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Hyperion software to be installed on a computer in the Company's accounting department; provided, Seller however, that the information -------- ------- retrieved from the Company's financial reporting system will permit each not be made available to persons who are directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent; provided, Purchaserfurther, Purchaser's Subsidiary however, that Parent shall not -------- ------- ------- use such information other than for purposes of assessing the financial condition of the Company for purposes of the Transactions, and their authorized representativesshall not share, provide or sell the information to have access to and examine and make copies any third party or use the information in any manner that could reasonably be considered a restraint on competition or result in a violation of all books and records of Seller relating any applicable Laws. Any information provided under this Section 7.5(b) shall be subject to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books terms of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofConfidentiality Agreement.
(ci) ParentUp to and including the Stock Purchase Closing Date, Purchaser and Purchaser's Subsidiary shall cooperate with SellerParent or its employees, at Seller's expenserepresentatives, and make available to Seller such documentsengineers, books, records consultants or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller agents may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) Property and Club Real Property listed on Exhibit 7.5 in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem Parent deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereatproperty. Such investigation The Investigation may include, but need not be limited to, include the performance of soil and surface or ground water sampling, monitoring, borings borings, or testing testing, Phase II environmental site assessment of such property and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental ConcernConcern (together, the "Environmental ------------- Investigation") relating to the Real Property and Club Property. Seller shall, and The ------------ Company shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent in conducting any such investigationEnvironmental Investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent full access to their properties such Real Property and businessesClub Real Property, together with full permission to conduct any such investigationEnvironmental Investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf ofof the Company or its predecessors or Majority Shareholder, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of such Real Property and Club Property that is in the Business. Purchaser shall restoreCompany's or Majority Shareholder's possession or control, repair or replace Assets that are damaged is reasonably available to the Company or destroyedMajority Shareholder or any of its employees, other than ordinary wear and tearrepresentatives, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage engineers, consultants or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesagents.
(fc) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject No investigation pursuant to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and 7.5 shall affect any representation or warranty made by the Confidentiality Agreement shall not prohibit Parent, Purchaser parties hereunder or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets any indemnification obligation contained in Articles VIII or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithIX hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cendant Corp)
Access; Confidentiality. (a) Between Through the date of this Agreement Closing Date, each party hereto shall afford to the other, including its authorized agents and the Closingrepresentatives, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices its and other facilities of the Business and to all its Subsidiaries’ businesses, properties, assets, books and records relating to and personnel, at reasonable hours and after reasonable notice; and the Business officers of each party shall furnish the other party making such investigation, including its authorized agents and to the employees and personnel of the Businessrepresentatives, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to such businesses, properties, assets, books and records and personnel as the Business as they may party making such investigation, or its authorized agents and representatives, shall from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On Each party hereto agrees that it, and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary its authorized agents and their authorized representatives, will conduct such investigation and discussions hereunder in a confidential manner and otherwise in a manner so as not to have interfere unreasonably with the other party’s normal operations and customer and employee relationships. Neither WFB, HNC, nor any of their respective Subsidiaries, shall be required to provide access to and examine and make copies or disclose information where such access or disclosure would violate or prejudice the rights of all books and records of Seller relating customers, jeopardize any attorney-client privilege or similar privilege with respect to the Business which are not delivered to Purchaser such information or Purchaser's Subsidiary pursuant hereto (including correspondencecontravene any law, memorandarule, books of accountregulation, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions decree, order, fiduciary duty or events occurring agreement entered into prior to the date hereof.
(c) ParentAll information furnished to HNC or WFB by the other in connection with the Contemplated Transactions, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller whether prior to the Closing as Seller may reasonably require after the Closing date of this Agreement or subsequent hereto, shall be held in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating confidence to the conduct of extent required by, and in accordance with, the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesConfidentiality Agreement.
(d) Each party agrees not During the period between the date of this Agreement and the Closing Date, WFB and WFB Bank will notify HNC of all regular and special meetings of the boards of directors, and the executive and audit committees of WFB and WFB Bank, and HNC or its representative will be permitted to destroy any files attend all such meetings in person or records which are subject to this section without giving reasonable notice by telephone, except to the otherextent the exclusion of HNC and its representatives may be required for the board of directors to exercise its duty under Pennsylvania law or otherwise as required under applicable law. In the event that HNC or its representative is unable to attend such meetings, and within 15 days WFB or WFB Bank shall advise HNC of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, matters conducted at such other party's expensemeeting as soon as practical. Notwithstanding the foregoing, all board of directors discussions and action concerning this Agreement or the Merger may be held at WFB’s discretion in a confidential session.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, As soon as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available but in no event more than three business days after filing, WFB will deliver to Seller HNC each material report, financial or otherwise, filed by it or WFB Bank with any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesRegulatory Authority.
(f) Any information regarding Within two business days after their preparation, WFB will deliver to HNC the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to unaudited consolidated balance sheet and unaudited consolidated statement of operations of WFB for the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives immediately preceding month prepared in accordance with GAAP except for the terms absence of footnotes and subject to year end audit and adjustment or as otherwise noted therein.
(g) Within two business days after their preparation, HNC will deliver to WFB the Confidentiality Agreement provided, however, that following unaudited consolidated balance sheet and unaudited consolidated statement of operations of HNC for the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made immediately preceding month prepared in accordance therewithwith GAAP except for the absence of footnotes and subject to year end audit and adjustment or as otherwise noted therein.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Willow Financial Bancorp, Inc.)
Access; Confidentiality. (a) Between Seller agrees to permit Buyer and its Representatives to have, during the period from the date of this Agreement and hereof to the ClosingClosing Date, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all premises, books and records relating to the Business and the Purchased Assets during normal business hours. Seller agrees to make available to Buyer upon reasonable advance notice and during normal business hours, the employees and personnel of Seller involved in the conduct of the BusinessBusiness and the operation of systems, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they Buyer may reasonably require and (iii) request, provided that such availability shall not unreasonably interfere with the normal operations of Seller. Seller shall furnish each of Parent, Purchaser and Purchaser's Subsidiary Buyer with such financial and operating operational data and other information concerning relating to the Business as they may Buyer shall from time to time reasonably request. Each party will direct request and shall reasonably cooperate with Buyer with respect to Buyer’s need to plan for and coordinate the integration of the Purchased Assets and to prepare to undertake its employees to render any assistance which obligations under the other party may reasonably request in examining or utilizing records referred to in this Section 6.2Ancillary Agreements.
(b) On Buyer agrees that it will not, and after the Closingwill cause its Representatives not to, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, use any information obtained pursuant to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto this Section 5.02 (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring as well as any other information obtained prior to the date hereof in connection with the entering into of this Agreement) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of Applicable Law, and other exceptions set forth in the Confidentiality Agreement, Buyer will keep confidential, and will cause its Representatives to transactions or events occurring keep confidential, all information and documents obtained pursuant to this Section 5.02 (as well as any other information obtained prior to the date hereofhereof in connection with the entering into of this Agreement) unless such information (1) was already known to such party, (2) becomes available to such party from other sources not known by Buyer to be bound by a confidentiality obligation, (3) is disclosed with the prior written approval of Seller or (4) is or becomes readily ascertainable from published information or trade sources. In the event that this Agreement is terminated or the transactions contemplated by this Agreement will otherwise fail to be consummated, Buyer will promptly cause all copies of documents or extracts thereof containing information and data as to Seller, to be returned to Seller at Buyer’s expense, or (at Seller’s option) confirm in writing to Seller that it has completely destroyed all such copies, documents, extracts, information and data.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior In addition to the Closing as Seller may reasonably require after the Closing confidentiality arrangements contained in this Agreement, all information provided or obtained in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties transactions contemplated by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Agreement (including its designated engineers or consultantspursuant to clause (a) may at any time enter into above) will be held by Buyer in accordance with and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, dated August 28, 2012, between Buyer and such information shall be held by ParentSeller (the “Confidentiality Agreement”). In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, will govern.
(d) Seller agrees that following the ClosingClosing Date, this Section 6.2 Buyer and its Representatives shall have reasonable access, during normal business hours, to the Confidentiality Agreement books, records, documentation, manuals, files and other information or data of Seller to the extent they relate to the Business or Purchased Assets or Assumed Liabilities during the period prior to the Closing Date (and shall permit such Persons to examine and copy such books, records, documentation, manuals, files and other information or data of Seller to the extent reasonably requested by such party), and shall cause the officers and employees of Seller to furnish (to Buyer or any of its Affiliates, or any regulator of Buyer or any of its Affiliates) all information reasonably requested by, and otherwise cooperate with (including, without limitation, causing employees to assist Buyer or any of its Affiliates by requiring such employees to avail themselves for trial, depositions, interviews and other Action-related litigation endeavors) Buyer with respect to the Business, Purchased Assets or Assumed Liabilities, in connection with regulatory compliance, indemnification claim verification, pending or threatened litigation, financial reporting and tax matters (including financial and tax audits and tax contests) and other similar business purposes. During the period required under the longer of Buyer’s record retention policy or Seller’s record retention policy, Seller shall not prohibit Parentdestroy or dispose of or permit the destruction or disposition of any such books, Purchaser records, documentation, manuals, files and other information or Purchaser's Subsidiary from using data without first offering, in writing, at least sixty (60) days prior to such destruction or disposition to surrender them to Buyer.
(e) Buyer agrees that following the Closing Date, Seller and providing its Representatives shall have reasonable access, during normal business hours, to third parties such the books, records, documentation, manuals, files and other information concerning or data of Buyer to the extent they relate to the Purchased Assets or Assumed Liabilities during the Business as it may deem appropriateperiod prior to the Closing Date (and shall permit such Persons to examine and copy such books, records, documentation, manuals, files and other information or data of Seller to the extent reasonably requested by such party), and shall cause the officers and employees of Buyer to furnish (to Seller or any of its Affiliates, or any regulator of Seller or any of its Affiliates) all information reasonably requested by, and otherwise cooperate with (including, without limitation, causing employees to assist Seller or any of its Affiliates by requiring such employees to avail themselves for trial, depositions, interviews and other Action-related litigation endeavors) Seller with respect to the Purchased Assets or Assumed Liabilities, in connection with regulatory compliance, indemnification claim verification, pending or threatened litigation, financial reporting and tax matters (including financial and tax audits and tax contests) and other similar business purposes. The foregoing During the period required under the longer of Buyer’s record retention policy or Seller’s record retention policy, Buyer shall not preclude Parentdestroy or dispose of or permit the destruction or disposition of any such books, Purchaser records, documentation, manuals, files and other information or Purchaser's Subsidiary from data without first offering, in writing, at least sixty (60) days prior to such destruction or disposition to surrender them to Seller.
(f) Buyer acknowledges that, in connection with the transfer of the Purchased Assets, and in particular Files and Records and electronically stored data, some portion of such Files and Records and electronically stored data will include information and data that is not part of the Purchased Assets. To the extent that this data is subject to privacy or other similar regulations, restrictions or rules, Buyer agrees: (i) the use or disclosure to maintain all of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure and data in violation of this Agreement, confidence; (ii) the use or disclosure of not to utilize such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or data for any purpose whatsoever; and (iii) the disclosure upon request of Seller, where such information required by law or court orderis identified, provided that, to transfer and return such data to Seller to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithreasonably practical.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gleacher & Company, Inc.)
Access; Confidentiality. (a) Between the date hereof until the expiration of this Agreement the Commitment Period (it being understood that the access provisions hereof shall no longer remain effective with respect to Assets and the ClosingUnrelated Sellers for which an Applicable Closing shall have occurred), Seller each existing Adeptus Party shall (iA) afford each of Parent, Purchaser, Purchaser's Subsidiary MPT and their its authorized representatives reasonable access to such Adeptus Parties and to all books, records, offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, such Adeptus Parties; (iiB) permit each of Parent, Purchaser MPT and Purchaser's Subsidiary its authorized representatives to make such inspections and to make copies of such books and records as they may reasonably require and require, in each case subject to compliance with applicable confidentiality requirements; (iiiC) furnish each of Parent, Purchaser MPT and Purchaser's Subsidiary its authorized representatives with such financial and operating data and other information concerning related to the Business Real Properties, the Business, and such Adeptus Parties as they the MPT Parties may from time to time reasonably request. Each party will direct its employees ; and (D) use their commercially reasonable efforts to render any assistance which cause all Unrelated Sellers to permit the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary existing MPT Parties and their authorized representatives (including its their designated engineers or engineers, architects, surveyors and/or consultants) may at any time ), upon reasonable notice to enter into and upon all or any portion of any of the Business' or any Business Subsidiary's properties (including all Real Property) Properties in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary such MPT Parties deem necessary or appropriate in their sole and absolute discretion, the environmental condition Real Properties and to complete their due diligence review with respect to the satisfaction all of such properties or the business conducted thereatconditions set forth in Section 7.2. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallThe existing Adeptus Parties shall cooperate, and shall use commercially reasonable efforts to cause the Business and any Business Subsidiary toUnrelated Sellers to cooperate, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary the existing MPT Parties and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigationinvestigations, and shall provide (or use commercially reasonable efforts to Parent, Purchaser, Purchaser's Subsidiary cause the Unrelated Sellers to provide) to such MPT Parties and their authorized representatives all plansinformation maintained by such Adeptus Parties or provided by the Unrelated Sellers to such Adeptus Parties and related to their due diligence review and other matters referenced above. MPT shall indemnify, soil defend and hold harmless the existing Adeptus Parties from and against all demands, claims, losses, damages, costs and expenses asserted against or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared incurred by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary such Adeptus Parties or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction them arising out of an inspection conducted or resulting from any physical damage to the applicable Real Properties caused by Purchaser any of the MPT Parties’ or Purchaser's representativestheir respective consultants’ or agents’ inspections thereof.
(fb) Any Notwithstanding any provision of the 2013 Master Funding Agreement to the contrary, the provisions of the Confidentiality Agreement dated as of July 13, 2012 (the "Confidentiality Agreement") shall remain binding and in full force and effect until the Completion of the Real Property that is the subject of the Final Closing. The information regarding contained herein, in the Business Schedules or Assets heretofore or hereafter obtained from Seller delivered to MPT or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 as Information (as defined and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally subject to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.exceptions 23
Appears in 1 contract
Samples: Master Funding and Development Agreement (Adeptus Health Inc.)
Access; Confidentiality. (a) Between Each of VBC and the VBC Subsidiaries shall permit Oneida Financial and its representatives reasonable access to its properties, and shall disclose and make available to them all books, papers and records relating to the assets, stock ownership, properties, operations, obligations and liabilities of VBC and its Subsidiaries, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors and any committees thereof (other than minutes that discuss any of the transactions contemplated by this Agreement), and stockholders, organizational documents, bylaws, material contracts and agreements, filings with any Regulatory Authority, accountants' work papers, litigation files, plans affecting employees, and any other business activities or prospects in which Oneida Financial may have a reasonable interest. Notwithstanding the foregoing, neither VBC nor the VBC Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of such party's customers, jeopardize the attorney-client privilege of the institution in possession or control of such information or contravene any law, rule, regulation, order, judgment or decree. Subject to applicable legal requirements, the parties hereto will make appropriate substitute disclosure arrangements under circumstances in which restrictions of the preceding sentence apply. VBC and the VBC Subsidiaries shall make their respective officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with Oneida Financial and its representatives, subject to the limitations of this paragraph. Upon advance notice and coordination of mutually agreeable and reasonable arrangements, VBC and each VBC Subsidiary shall permit Oneida Financial, at its expense, to cause a "phase I environmental audit" and, if a recognized environmental condition is found or suspected, a "phase II environmental audit" to be performed at any physical location owned or occupied by VBC or any VBC Subsidiary. For any leased locations, such arrangements shall be subject to obtaining any necessary consents of the landlord. Copies of any such environmental reports shall be provided to VBC upon its request. The parties will hold all such information delivered in confidence to the extent required by, and in accordance with, the provisions of the agreement between VBC and Oneida Financial (the "Confidentiality Agreement").
(b) Oneida Financial agrees to conduct such investigations and discussions hereunder in a manner so as not to interfere unreasonably with normal operations and customer and employee relationships of the other party.
(c) Subject to applicable legal requirements, in addition to the access permitted by subparagraph (a) above, from the date of this Agreement and through the ClosingClosing Date, Seller VBC shall (i) afford each permit employees of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Oneida Financial reasonable access to all offices and other facilities of the Business and to all books and records information relating to the Business problem loans, loan restructurings and to the employees and personnel loan work-outs of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records VBC and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesVBC Subsidiaries.
(d) Each If the transactions contemplated by this Agreement shall not be consummated, VBC and Oneida Financial will each destroy or return all documents and records obtained from the other party agrees not or its representatives, during the course of its investigation and will cause all information with respect to destroy any files or records which are subject the other party obtained pursuant to this section without giving reasonable Agreement or preliminarily thereto to be kept confidential, except to the extent such information becomes public through no fault of the party to whom the information was provided or any of its representatives or agents and except to the extent disclosure of any such information is legally required. VBC and Oneida Financial shall each give prompt written notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at of any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or contemplated disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to where such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithis so legally required.
Appears in 1 contract
Access; Confidentiality. (a) Between During the date of this Agreement and the ClosingPre-Closing Period, Seller shall (i) afford each of Parentand shall cause its Representatives to, Purchaserupon reasonable prior notice, Purchaser's Subsidiary give Buyer and their its authorized representatives Representatives reasonable access during normal business hours to all the Contracts, Books and Records, financial, operating and other information and management and Business Employees of the Business and the offices and other facilities and properties of the Business Seller and to all books and records relating its Subsidiaries, in each case to the Business and extent related to the employees and personnel of the Business, (ii) permit the Acquired Assets or the Assumed Liabilities; provided, that Buyer and its Representatives shall not interfere unreasonably with the business and operations of Seller. Buyer shall not contact or discuss the transactions contemplated by this Agreement with any service provider of Seller or its Subsidiaries or with any customers, suppliers or other business relations of Seller or its Subsidiaries, in each case, without Seller’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The terms of Parent, Purchaser the Confidentiality Agreement shall apply to any information provided to Buyer and Purchaser's Subsidiary its Representatives pursuant to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
6.4. Notwithstanding anything to the contrary set forth herein, Seller shall not be required to provide access to, or to disclose information, where such access or disclosure would (a) jeopardize the attorney-client or other legal privilege of Seller, (b) On and after relate to individual performance or evaluation records, medical histories or other personnel-related information, the Closingdisclosure of which would, during normal business hoursin Seller’s good faith opinion, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of subject Seller or any of its Affiliates.
Subsidiaries to risk of Liability, (c) contravene any applicable Law or (d) Each give a third party agrees not the right to destroy any files terminate or records accelerate the rights under a Contract to which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parentis a party or otherwise bound, Purchaser, Purchaser's Subsidiary or their representatives it being understood that Seller shall be subject take reasonable actions to the terms of the Confidentiality Agreement, and eliminate any such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and impediments to providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between From the date hereof to the Closing Date or earlier termination of this the Agreement in accordance with Article VIII hereof, and subject to applicable Gaming Laws, Seller and the ClosingAcquired Companies shall, Seller and shall cause their respective Representatives to, (i) afford each Purchaser’s Representatives, upon reasonable prior written notice, which shall be directed to Seller as set forth in Section 9.1 (or such other officer of ParentSeller designated in writing), Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access during normal business hours to all the officers, employees, agents (including outside accountants and financial advisors), properties, offices and other facilities of the Business and to all facilities, books and records relating to the Business and to the employees and personnel of the Business, Acquired Companies and (ii) permit each of Parent, furnish to Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with its Representatives such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party such Persons may reasonably request concerning the Shares (or, following the Conversions, the Purchased Interests), the Business and the operations of the Acquired Companies; provided, however, that (y) Purchaser shall have no right to perform any invasive, subsurface, destructive or physical testing, sampling or other environmental investigation of any properties or facilities owned or operated by the Acquired Companies without Seller’s prior written consent (which consent may be withheld in examining Seller’s sole discretion), and (z) neither Seller nor any of the Acquired Companies shall be required to violate any Order or utilizing records referred Law to which Seller or an Acquired Company is subject or to waive any privilege which Seller or an Acquired Company may possess in discharging the obligations pursuant to this Section 6.25.3, provided, however, that the parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not be reasonably likely to cause such privilege to be undermined with respect to such information. Prior to the Closing, without the prior written consent of Seller, Purchaser shall not contact any suppliers to, or customers of, the Company (except to the extent such communications are limited to suppliers and customers of Purchaser or its Affiliates, and then only to the extent relating to such supplier’s or customer’s business with Purchaser or its Affiliates). Purchaser and its Representatives shall conduct their investigations pursuant to this provision in such a manner so as not to unreasonably interfere with the normal operations of the Business.
(b) On Purchaser and Seller acknowledge and agree that prior to the Closing, the Non-Disclosure Agreement shall remain in full force and effect. If this Agreement is, for any reason, terminated prior to the Closing, the Non-Disclosure Agreement and the provisions of this Section 5.3(b) shall continue in full force and effect unimpaired. Purchaser and Seller agree that, upon Closing, the Non-Disclosure Agreement shall automatically terminate and have no further force or effect. From and after the Closing, during normal business hourssubject to Section 5.5, Seller will permit each agrees to treat in confidence all Confidential Information and all other documents, materials and other information regarding the Acquired Companies, the Business or the Shares (or, following the Conversions, the Purchased Interests) or which it shall have obtained regarding Purchaser during the course of Parentthe negotiations leading to the consummation of the Contemplated Transactions (whether obtained before or after the date of this Agreement), Purchaserthe investigation provided for herein and the preparation of this Agreement and other related documents provided, Purchaser's Subsidiary that Seller may disclose any such documents, materials, and their authorized representativesinformation to the extent required by applicable Law and in such case, to have access to and examine and make copies the extent reasonably possible, Seller shall provide Purchaser with notice of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring such requirement prior to the date hereof and to transactions or events occurring prior to the date hereofmaking any disclosure.
(c) Parent, Purchaser and Purchaser's Subsidiary No investigation pursuant to this Section 5.3 shall cooperate with Seller, at Seller's expense, and make available affect any representation or warranty in this Agreement of any party hereto or any condition to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities the obligations of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliateshereto.
(d) Each party agrees not to destroy any files or records which are As promptly as practicable, but subject to this section without giving reasonable compliance with applicable Gaming Laws, Seller will deliver to Purchaser copies of all license applications and other filings made by any Acquired Company after the date hereof and before the Closing Date with any Governmental Authority or Gaming Authority with such redactions as are reasonably necessary to protect nonpublic information related to the Seller (other than applications or other filings made by individuals (though the Seller shall provide prompt notice to the other, and within 15 days of receipt Purchaser of such noticeapplications or filings being submitted) and routine, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary recurring applications and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or filings made in the possession Ordinary Course of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives).
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Access; Confidentiality. (a) Between From the date hereof until the earlier of the Closing and the termination of this Agreement pursuant to Article 9, and subject to the requirements of applicable Laws, Fubo shall give to Hulu and its Representatives reasonable access during normal business hours to the properties, books and records of Fubo and the ClosingFubo Subsidiaries, Seller in each case, for the purpose of consummating the Transactions and at Parent’s sole cost and expense, except that nothing herein shall require Fubo or any Fubo Subsidiary to disclose any (i) afford each information that would give rise to a material risk of Parentwaiving the protection to Fubo or any Fubo Subsidiary of an attorney-client privilege, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and work product doctrine or other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Businesslegal privilege, (ii) permit each of ParentContract to which Fubo or the Fubo Subsidiaries is a party or otherwise bound if disclosing such Contract would violate or cause a default pursuant to, Purchaser and Purchaser's Subsidiary or give a third Person the right to make terminate or accelerate any rights pursuant to, such inspections and to make copies of such books and records as they may reasonably require and Contract, (iii) furnish each Trade Secrets or (iv) documents or information related to pricing or other matters that are highly sensitive or competitive in nature. Without limiting the foregoing, in the event that Fubo or any Fubo Subsidiary does not provide information in reliance on the immediately preceding sentence, it shall provide notice to Hulu that it is withholding such information and shall use its reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not risk waiver of Parentsuch privilege, Purchaser and Purchaser's Subsidiary with such financial and operating data and including, in Fxxx’s sole discretion, pursuant to customary “clean-room” or other information concerning the Business as they may from time appropriate procedures. Any investigation pursuant to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
7.05(a) shall be conducted in such manner as not to (bx) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate interfere unreasonably with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of Fubo or the Business Fubo Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by Seller prior officers, employees and other authorized Representatives of Fubo or any of the Fubo Subsidiaries of their normal duties or (y) create an unreasonable risk of damage or destruction to any property or assets of Fubo or any of the Fubo Subsidiaries. Nothing in this Section 7.05(a) shall be construed to require Fubo, any of the Fubo Subsidiaries or any of their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any access to the properties of Fubo and the Fubo Subsidiaries will be subject to Fubo’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. All requests for access pursuant to this Section 7.05(a) must be directed to the Chief Legal Officer of Fubo, or another person designated in writing by Fxxx.
(b) From the date hereof until the earlier of the Closing and the termination of this Agreement pursuant to Article 9, and subject to the requirements of applicable Laws, Hulu shall give to Fubo and its Representatives reasonable access during normal business hours to the properties, books and records of Hulu and its Subsidiaries, in each case, as they pertain to the HL Business or the HL Business Assets and for the purpose of consummating the Transactions and at Fubo’s sole cost and expense, except that nothing herein shall require Hulu or any of its Affiliates to disclose any (i) information that would give rise to a material risk of waiving the protection to Hulu or any of its Affiliates of an attorney-client privilege, work product doctrine or other legal privilege, (ii) Contract to which Hulu or any of its Affiliates is a party or otherwise bound if disclosing such Contract would violate or cause a default pursuant to, or give a third Person the right to terminate or accelerate any rights pursuant to, such Contract, (iii) Trade Secrets or (iv) documents or information related to pricing or other matters that are highly sensitive or competitive in connection nature. Without limiting the foregoing, in the event that Hulu or any of its Subsidiaries does not provide information in reliance on the immediately preceding sentence, it shall provide notice to Fubo that it is withholding such information and shall use its reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not risk waiver of such privilege, including, in Hulu’s sole discretion, pursuant to customary “clean-room” or other appropriate procedures. Any investigation pursuant to this Section 7.05(b) shall be conducted in such manner as not to (x) interfere unreasonably with the conduct of the business of Hulu or any governmental investigation of Seller its Affiliates or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of Hulu or any of its Affiliates of their normal duties or (y) create an unreasonable risk of damage or destruction to any property or assets of Hulu or any of its Affiliates.
(d. Nothing in this Section 7.05(b) Each party agrees not shall be construed to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reportsrequire Hulu, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary its Affiliates or any of their engineersrespective Representatives to prepare any reports, consultants analyses, appraisals, opinions or agents other information. Any access to the properties of Hulu and all other information relating its Subsidiaries will be subject to environmental matters Hulu’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. All requests for access pursuant to this Section 7.06(b) must be directed to the Chief Counsel of Hulu (with a copy, which shall not constitute notice, to the Deputy Chief Counsel of Hulu), or another person designated in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted writing by Purchaser or Purchaser's representativesHulu.
(fc) Any Each of Hulu and Fxxx acknowledges that the information regarding provided to it and its Representatives in connection with this Agreement and the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be Transactions is subject to the terms of (i) the Mutual Non-Disclosure Agreement between Fubo and Parent, dated as of December 9, 2024 (as amended or modified from time to time, the “Confidentiality Agreement, ”) and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with (ii) the Clean Team Agreement. The terms of the Confidentiality Agreement provided, however, that following and the Clean Team Agreement are hereby incorporated by reference. The Confidentiality Agreement and the Clean Team Agreement shall terminate at the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between From the date of this Agreement and hereof until the Closing, the Seller shall permit the Acquiror and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice of no less than one (i1) afford each of ParentBusiness Day , Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices the personnel, properties, Contracts, Tax Returns, the Evamist Books and other facilities Records, the Assumed Liabilities or the Evamist Business, and the Seller shall furnish promptly to the Acquiror such information in the Seller's possession concerning the Purchased Assets, the Assumed Liabilities or the Evamist Business as the Acquiror may reasonably request; provided, however, that any such access shall be conducted in a manner as not to unreasonably interfere with the operation of the Evamist Business and the Seller shall not be required to all provide any financial, operating or other information that is not currently available through the Seller's existing business processes and the creation of which would be unduly burdensome on the Seller. The Seller may redact such portions of its books and records relating that do not relate to the Business Purchased Assets, the Assumed Liabilities or the Evamist Business. The Seller shall instruct its respective employees, counsel and financial advisors to provide reasonable cooperation to the employees and personnel Acquiror in its investigation of the Evamist Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On The Seller shall implement procedures to keep confidential, and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary cause its Affiliates and its and their authorized representativesofficers, directors, employees, representatives and advisors to have access to and examine and make copies of keep confidential, all books and records of Seller information relating to the Business Purchased Assets, Assumed Liabilities and Evamist Business, except as required by Law and except for information which are is or becomes generally available to the public other than as a result of a disclosure by the Seller or its Affiliates and its and their officers, directors, employees, representatives or agents. The Seller shall not delivered disseminate any such information other than to
(c) Information within the Purchased Assets disclosed to Purchaser or Purchaser's Subsidiary the Acquiror pursuant hereto to this Agreement (including correspondence, memoranda, books of account, Tax records in the Seller Disclosure Schedule and the likeother Schedules delivered pursuant to this Agreement) shall be held as Confidential Information (as defined in the Confidentiality Agreement) and relating to events occurring prior shall be subject to the date hereof and Confidentiality Agreement to transactions or events occurring prior to the extent such information is Confidential Information as of the date hereof.
(cd) ParentThe parties hereto, Purchaser and Purchaser's Subsidiary or any of their respective Affiliates or any of their respective officers or directors, shall cooperate as may be reasonably required in connection with Sellerthe investigation and defense of any suit, at Seller's expenseaction, and make available claim, proceeding or investigation, in each case that is adverse to Seller such documentsa third party, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business Purchased Assets, the Assumed Liabilities or Seller prior to the Closing as Seller may reasonably require after Evamist Business; provided, however, that the Closing requesting party shall reimburse the non-requesting party promptly for all reasonable out-of-pocket costs and expenses incurred in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving such requests, including reasonable notice to the other, legal fees and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expensecosts.
(e) ParentFollowing the Closing, Purchaserfor so long as such information is retained by the Seller (which shall be for a period of at least three (3) years), Purchaser's Subsidiary the Seller shall permit the Acquiror and their its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice, to the Seller and its books, records and personnel to the extent relating to the Purchased Assets, the Assumed Liabilities or the Evamist Business, to the extent such access may reasonably be required: (including its designated engineers or consultantsi) may at any time enter into and upon all or any portion in connection with the preparation of the Business' Acquiror's accounting records or with any Business Subsidiary's properties audits thereof, (including all Real Propertyii) in order connection with any suit, claim, action, proceeding or investigation relating to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretionthe Purchased Assets, the environmental condition Assumed Liabilities or the Evamist Business (other than such a suit, claim, action, proceeding or investigation that is adverse to the Seller) or (iii) in connection with any required regulatory filing relating to the Purchased Assets, the Assumed Liabilities or the Evamist Business; provided that the Acquiror shall reimburse the Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by the Seller in connection with any such request. Notwithstanding the foregoing, the Seller need not disclose to the Acquiror any information: (i) relating to pricing or other matters that are highly sensitive if (I) providing such portions of documents or information, in the good faith opinion of the Seller's counsel, would reasonably be expected to result in antitrust difficulties for the Seller and (II) the Seller designates such information as "outside counsel and retained experts only" and discloses such information to Acquiror's outside counsel and retained experts; or (ii) which the Seller is prohibited from disclosing by applicable Law. If any material is withheld by the Seller pursuant to the immediately preceding sentence, the Seller shall inform the Acquiror as to the general nature of what is being withheld. The Seller may redact such portions of such properties books and records that do not relate to the Purchased Assets, the Assumed Liabilities or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Evamist Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following Following the Closing, this Section 6.2 for so long as such information is retained by Acquiror (which shall be for a period of at least three (3) years), the Acquiror shall permit the Seller and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice, to the Acquiror and the Confidentiality Agreement shall not prohibit ParentBooks and Records included in the Purchased Assets and the employees of the Acquiror or its Subsidiaries, Purchaser or Purchaser's Subsidiary from using and providing to third parties the extent that such information concerning the Assets or the Business as it access may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from reasonably be required: (i) in connection with the use preparation of the Seller's accounting records or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreementwith any audits thereof, (ii) in connection with any suit, claim, action, proceeding or investigation relating to the use Purchased Assets, the Assumed Liabilities or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source the Evamist Business (other than Seller such a suit, claim, action, proceeding or investigation that is adverse to the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, Acquiror) or (iii) in connection with any required regulatory filing relating to the disclosure Purchased Assets, the Assumed Liabilities or the Evamist Business; provided that the Seller shall reimburse the Acquiror promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by the Acquiror in connection with any such request, including reasonable attorney fees and costs. Notwithstanding the foregoing, the Acquiror need not disclose to the Seller any information: (A) relating to pricing or other matters that are highly sensitive if (I) providing such portions of documents or information, in the opinion of the Acquiror's counsel, might reasonably result in antitrust difficulties for the Acquiror and (II) the Acquiror designates such information as "outside counsel and retained experts only" and discloses such information to the Seller's outside counsel and retained experts or (B) which the Acquiror is prohibited from disclosing by applicable Law. If any material is withheld by the Acquiror pursuant to the immediately preceding sentence, the Acquiror shall inform the Seller as to the general nature of what is being withheld. The Acquiror may redact such portions of such information required by law or court order, provided that, Books and Records that do not relate to the extent practicablePurchased Assets, prior to such disclosure required by law the Assumed Liabilities or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithEvamist Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Access; Confidentiality. (a) Between From and after the date of this Agreement, Company Bank shall (i) give Parent Bank and its authorized representatives, upon reasonable advance notice and during regular business hours, reasonable access to all books, records, personnel, officers and other facilities and properties of Company Bank and the Company Bank Subsidiaries and (ii) permit Parent Bank to make such copies and inspections thereof, upon reasonable advance notice and during regular business hours, as Parent Bank may reasonably request; provided, however, that any such access shall be conducted at Parent Bank’s expense, at a reasonable time, under the supervision of Company’s or Company Bank’s personnel and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated hereby and not to interfere with the normal operations of the business of Company Bank. Nothing herein shall require either Company, Company Bank or any Company Bank Subsidiary to disclose any information to Parent Bank if such disclosure would (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement (including any confidentiality agreement to which Company, Company Bank or any Affiliate of either is a party). With respect to personnel information relating to Company Bank’s employees, Company Bank shall cooperate with Parent Bank in providing such information sufficiently in advance of the Closing Date to assist Parent Bank in commencing the administration of its payroll, employee benefits and other employee programs as of the Closing Date with respect to Company Bank employees. Company Bank’s cooperation shall include affording Parent Bank reasonable access to Company Bank’s employees prior to the Closing Date during normal business hours (on terms not unreasonably disruptive to Company Bank’s business and operations) or at other reasonable times for purposes of conducting employee orientation and similar meetings.
(b) The Confidentiality Agreement shall be binding on the parties hereto and in full force and effect until the Closing, at which time it shall terminate only with respect to information relating solely to Company Bank and/or one or more Company Bank Subsidiaries. The information contained herein, in the Disclosure Schedule or delivered to Parent Bank or its authorized representatives pursuant hereto and the terms and existence of this Agreement and the status of the transactions contemplated hereby shall be deemed to be Evaluation Material (as defined and subject to the exceptions contained in the Confidentiality Agreement) until the Closing.
(c) All information disclosed by Parent or Parent Bank to Company or any of its representatives, whether prior or subsequent to the date of this Agreement including any information obtained by Company or its representatives from, or on behalf of, Parent or Parent Bank shall be kept confidential by Company and its representatives, except as required by Law, to the Closing, Seller shall (i) afford each of same extent and subject to the same use restrictions as apply to Parent, Purchaser, Purchaser's Subsidiary Parent Bank and their authorized its representatives reasonable access to all offices and other facilities of under the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesConfidentiality Agreement.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to Notwithstanding the otherforegoing, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary parties hereto and their respective Affiliates and representatives are each hereby expressly authorized representatives to disclose to any and all Persons, without limitation of any kind, the structure and tax aspects of this Agreement and all material of any kind (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections opinions or other procedures relating tax analyses) that are provided to environmental conditions or Materials such Person related to such structure and tax aspects and it is hereby confirmed that such Persons have been so authorized since the commencement of Environmental Concern. Seller shall, and shall cause discussions between the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary parties and their authorized respective representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Merger Agreement (Unionbancal Corp)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall cause the Company prior to the Closing to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give Purchaser and their its authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Business and to all books and records relating to the Business and to the employees and personnel of the BusinessCompany, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections and to make copies of such books and records thereof as they Purchaser may reasonably require request and (iii) cause the officers of the Company to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business business and properties of the Company as they Purchaser may from time to time reasonably request; provided, however, that any such access shall be conducted -------- ------- at Purchaser's expense, at a reasonable time, under the supervision of Seller's or the Company's personnel and in such a manner as not to interfere with the normal operation of the business of Seller or the Company. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to Notwithstanding anything contained in this Section 6.2or any other agreement between Purchaser and Seller executed prior to the date hereof, none of the Company, any Company Subsidiary, Seller or any Affiliate of Seller shall have any obligation to make available to Purchaser or its representatives, or provide Purchaser or its representatives with, any consolidated, combined or unitary Tax Return filed by Seller or any of its Affiliates or predecessors (other than any such tax returns and materials, including pro forma tax returns and schedules, solely relating to the Company or any Company Subsidiary), or any related material, and nothing herein shall require Seller to disclose any information to Purchaser if such disclosure would in Seller's sole and absolute discretion (i) jeopardize any attorney-client or other legal privilege, or (ii) contravene any applicable laws or fiduciary duty.
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect until the Closing, during normal business hours, Seller will permit each at which time such Confidentiality Agreement and the obligations of Parent, Purchaser, Purchaser's Subsidiary Purchaser thereunder and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not under this Section 5.2 shall terminate. The information delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto hereto, including the information contained in the Disclosure Schedule, shall be deemed to be Evaluation Material (including correspondence, memoranda, books of account, Tax records as defined and the like) and relating to events occurring prior subject to the date hereof and to transactions or events occurring prior to exceptions contained in the date hereof.
(cConfidentiality Agreement) Parent, Purchaser and Purchaser's Subsidiary until the Closing. Seller shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or keep all information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller its possession relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller Company or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Company Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or confidential on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms conditions of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement which shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally apply to the public Seller as if such terms and conditions were applicable to the Seller rather than the Purchaser, and as if fully set forth herein, except as necessary or which subsequently has come into the public domain, other than by way of disclosure in violation of advisable for Seller to perform its obligations under this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Through the date of this Agreement Closing Date, each party hereto shall afford to the other, including its authorized agents and the Closingrepresentatives, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices its and other facilities of the Business and to all its Subsidiaries’ businesses, properties, assets, books and records relating to records, and personnel, at reasonable hours and after reasonable notice; and the Business officers of each party shall furnish the other party making such investigation, including its authorized agents and to the employees and personnel of the Businessrepresentatives, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to such businesses, properties, assets, books and records, and personnel as the Business as they may party making such investigation, or its authorized agents and representatives, shall from time to time reasonably request. Each party hereto agrees that it, and its authorized agents and representatives, will direct its employees conduct such investigation and discussions hereunder in a confidential manner and otherwise in a manner so as not to render interfere unreasonably with the other party’s normal operations and customer and employee relationships. Notwithstanding the foregoing, neither HBI nor PBI shall be required to provide access to or to disclose information where such access or disclosure would violate the rights of such entity’s customers, jeopardize the attorney-client privilege of the entity in possession or control of such information, or contravene any assistance law, rule, regulation, order, judgment, decree or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2restrictions of the previous sentence apply.
(b) On PBI and after the ClosingHBI each agree that they will not, during normal business hoursand will cause their representatives not to, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, use any information obtained pursuant to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto this Section 5.3 (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring as well as any other information obtained prior to the date hereof in connection with entering into this Agreement) for any purpose unrelated to the consummation of the Contemplated Transactions. PBI and HBI shall hold all information obtained pursuant to transactions or events occurring this Section 5.3 (as well as any other information obtained prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing hereof in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating entering into this Agreement) in confidence to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the otherextent required by, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretionaccordance with, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms provisions of the Confidentiality Agreement, and which is incorporated herein by reference. The parties hereto agree that such information Confidentiality Agreement shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives continue in accordance with its terms, notwithstanding the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation termination of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Subject to the date terms and conditions of this Agreement Agreement, applicable Law and the Closingterms of the Confidentiality Agreement, Seller shall cause the Companies prior to the Closing to (i) afford each of Parentgive Purchaser and its authorized representatives, Purchaserupon reasonable advance notice and during regular business hours, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices Collective Bargaining Agreements, all distribution Contracts, including those entered into between the Companies and I/O Distributors, documentation surrounding pending litigation, books, records, personnel and personnel records, officers and other facilities and properties of the Business Companies and to all books the Companies’ Subsidiaries (for purposes of coordinating post-Closing transfer of such items, transition planning and records relating to the Business and to the employees and personnel of the Businessother matters), (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections thereof, upon reasonable advance notice and to make copies of such books and records during regular business hours, as they Purchaser may reasonably require request, and (iii) cause the officers of the Companies and the Companies’ Subsidiaries to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such unaudited financial and operating data and other information concerning that relates to the business and properties of the Business as they is regularly prepared in the ordinary course that Purchaser may from time to time reasonably request; provided, however, that any such access shall be conducted at Purchaser’s expense, at a reasonable time, under the supervision of Seller’s or the Companies’ personnel, shall not include sampling of building materials or environmental media without the prior written consent of Seller and shall be conducted in such a manner as to maintain the confidentiality of this Agreement and the Closing Transactions and not to interfere with the normal operations of the business of Seller or the Companies. Each party will direct The Parties shall take all actions necessary to permit access by Purchaser and its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in representatives under this Section 6.26.2(a) unless such access would reasonably be expected to result in (A) disclosure of competitively sensitive information to Purchaser or any of its representatives in a manner that would reasonably be expected to result in competitive harm to Seller or any of its Affiliates if the Closing were not to occur, (B) the disclosure of any trade secrets of third parties or a violation of any of the obligations of the Companies or the Companies’ Affiliates with respect to confidentiality (provided that the Seller shall use its reasonable efforts (which shall not require the payment of any money or the incurrence of any Liability) to obtain the consent of such third party to such inspection or disclosure), or (C) the loss of attorney-client privilege with respect to such information (provided that Seller will limit access to the minimum extent required to maintain such privilege). By way of example and not limitation, Seller and its Affiliates shall provide access to Collective Bargaining Agreements, distribution Contracts, including those entered into between the Companies and I/O Distributors, and I/O Distributor and other wage/hour litigation to the fullest extent possible and, if access to such documents is required to be limited pursuant to the immediately preceding sentence, Seller and its Affiliates shall used their reasonable best efforts to limit such access to the least extent possible to comply the immediately preceding sentence.
(b) On The Confidentiality Agreement shall be binding on the Parties and after in full force and effect until the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, at which time it shall terminate only with respect to have access to and examine and make copies of all books and records of Seller information relating solely to the Business which are not Companies and the Companies’ Subsidiaries. The information contained herein, in the Schedules or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the liketerms and existence of this Agreement and the status of the Closing Transactions shall be deemed to be Proprietary Information (as defined and subject to the exceptions contained in the Confidentiality Agreement) and relating to events occurring until the Closing. If for any reason this Agreement is terminated prior to the date hereof Closing Date, the Confidentiality Agreement shall nonetheless continue in full force and to transactions or events occurring prior to the date hereofeffect in accordance with its terms, notwithstanding such termination.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available With respect to the representations made by Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities in Section 4.15 (Employee Benefit Plans) as of the Business or date hereof, in the event that Seller obtains Knowledge of facts and circumstances that arise after the date hereof and prior to the Closing Closing, which would cause one or more of Seller’s representations to be materially inaccurate if made as Seller may reasonably require after of the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the otherDate, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and or shall cause the Business Companies or the Companies’ Subsidiaries, to use commercially reasonable efforts to provide Purchaser with information regarding such change in facts and any Business Subsidiary tocircumstances. For the avoidance of doubt, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf the breach of, or noncompliance with, the covenants and obligations set forth in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement 6.2(c) shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from be considered (i) for purposes of determining whether the use condition set forth in Section 9.2(a) (Additional Conditions to Obligations of Purchaser to Effect the Closing) shall have been satisfied or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure for purposes of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Section 11.2(a) (Indemnification by Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith).
Appears in 1 contract
Access; Confidentiality. (a) Between Seller agrees to permit Purchaser and its accountants, counsel and other authorized representatives to have, during the period from the date of this Agreement and hereof to the ClosingClosing Date, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices the Assets over which Seller has physical control, premises, books and other facilities records of Seller and its Subsidiaries that relate primarily to the Business or Assets and personnel of the Business during normal business hours. Seller agrees to make available to Purchaser, upon reasonable advance notice and to all books during normal business hours, the officers and records relating employees of Seller and its Subsidiaries, as Purchaser may reasonably request; provided, that such availability shall not interfere with the normal operations of Seller and its Subsidiaries. Seller shall furnish Purchaser with such financial and operational data and other information with respect to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Assets as Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may shall from time to time reasonably requestrequest and as are maintained by Seller in the ordinary course of business. Each party will direct its employees to render any assistance which Notwithstanding the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hoursforegoing, Seller will and its Subsidiaries shall not be required to permit each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their authorized representatives, its representatives to have access to any documents, portions thereof or other information which Seller and/or its Subsidiaries are prohibited from disclosing due to confidentiality restrictions, and examine except as contemplated by Section 6.1 of this Agreement, Seller and make copies of all books and records of Seller relating to Purchaser hereby agree that until the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) ParentClosing shall occur, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available have no right to Seller such documents, books, records direct or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of control the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatoperations. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary Purchaser or their its representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its representatives in accordance with the terms of the Confidentiality Agreement Agreement, provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business (but not any other assets, liabilities or other information relating to Seller) as it may deem appropriate. The foregoing shall not preclude ParentFrom the date hereof through the Closing, Seller will continue to prepare and to promptly provide to Purchaser or Purchaser's Subsidiary from (i) such management reports and information and financial statements and information as Seller currently prepares in the use or disclosure ordinary course of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithbusiness.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the ClosingSubject to any applicable Law, Seller shall and shall cause the Companies prior to the Closing to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give Purchaser and their its authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each cause the officers of Parent, Seller and the Companies to furnish Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business and properties of the Companies and the Subsidiaries as they Purchaser may from time to time reasonably request. Each party will direct its employees ; provided, however, that any such access shall be conducted at a reasonable time, under the supervision of Seller’s or the Companies’ personnel and in such a manner as to render maintain the confidentiality of this Agreement and the Transactions and not to unreasonably interfere with the normal operation of the business of Seller or any assistance which the other party may reasonably request in examining Company or utilizing records referred to in this Section 6.2Subsidiary.
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect until the Closing; thereafter, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, the Confidentiality Agreement shall terminate except with respect to have access to and examine and make copies of all books and records of Seller relating breaches thereof that occurred prior to the Business which are not Closing. The information contained herein, in the Disclosure Schedule or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of Confidentiality Agreement as Evaluation Material (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement providedare incorporated herein by reference.
(c) For a period of five (5) years after the Closing Date, howeverSeller will not, and will not permit its Representatives and Affiliates to, directly or indirectly, disclose or use or authorize, license or otherwise permit other Persons to use in any way that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, is detrimental to Purchaser or Purchaser's any Company or Subsidiary from using any trade secrets or other information that is confidential, proprietary or otherwise not publicly available, including any confidential data, know-how or information relating to the business practices, products, customers, prospects, suppliers, research and providing to third parties such information concerning development, ideas, designs, discoveries, inventions, techniques, equipment, marketing, sales, methods, manuals, strategies or financial affairs (collectively, the Assets or the “Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from Confidential Information”) about (i) the use Business, or disclosure of such information which currently is known generally any Company or Subsidiary to the public or which subsequently has come into extent relating to the public domainBusiness, other than by way of disclosure and (ii) Purchaser and its Affiliates obtained in violation the performance of this Agreement. The obligation of Seller and its Affiliates and Representatives to hold any such information in confidence will be satisfied if each exercises the same degree of care with respect to such information as it would take to preserve the confidentiality of its own similar information. In the event of a breach of the obligations hereunder by Seller, its Affiliates or Representatives, the parties hereto agree that, in addition to all other available remedies, Purchaser will be entitled to injunctive relief to enforce such obligations in any court of competent jurisdiction. Notwithstanding the foregoing, Business Confidential Information will not include such information which: (A) at the time of disclosure is publicly available or becomes publicly available through no act or omission of Seller, its Affiliates or Representatives; (B) is thereafter disclosed or furnished to Seller by a third Person that did not acquire the information under an obligation of confidentiality; or (C) is disclosed by Seller under compulsion of applicable Law. Nothing in this Section 5.2(c) shall limit Seller’s ability to enforce its rights under this Agreement or any other written agreement entered into in connection with this Agreement.
(d) For a period of five (5) years after the Closing Date, Purchaser will not, and will not permit its Representatives and Affiliates to, directly or indirectly, disclose or use or authorize, license or otherwise permit other Persons to use in any way that is detrimental to Seller or any of its Group Affiliates any trade secrets or other information that is confidential, proprietary or otherwise not publicly available, including any confidential data, know-how or information relating to the business practices, products, customers, prospects, suppliers, research and development, ideas, designs, discoveries, inventions, techniques, equipment, marketing, sales, methods, manuals, strategies or financial affairs (collectively, the “Esselte Confidential Information”) about (i) the Seller or any Group Affiliate to the extent relating to the Retained Business, and (ii) Seller and its Affiliates obtained in the use or disclosure performance of this Agreement. The obligation of Purchaser and its Affiliates and Representatives to hold any such information in confidence will be satisfied if each exercises the same degree of care with respect to such information as it would take to preserve the confidentiality of its own similar information. In the event of a breach of the obligations hereunder by Purchaser, its Affiliates or Representatives, the parties hereto agree that, in addition to all other available remedies, Seller will be entitled to injunctive relief to enforce such obligations in any court of competent jurisdiction. Notwithstanding the foregoing, Esselte Confidential Information will not include such information which: (A) at the time of disclosure is publicly available or becomes publicly available through no act or omission of Purchaser, its Affiliates or Representatives; (B) is thereafter disclosed or furnished to Purchaser by a third Person that becomes available to Parentdid not acquire the information under an obligation of confidentiality; (C) is disclosed by Purchaser under compulsion of applicable Law; or (D) information which was independently known, Purchaser developed or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known possessed by Purchaser or Purchaser's Subsidiary to have its Affiliates on a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, non-confidential basis prior to such disclosure required by law or court order Parent, being furnished to Purchaser or any of its Affiliates or Representatives by Seller or its Affiliates. Nothing in this Section 5.2(d) shall limit Purchaser's Subsidiary will give Seller prior ’s ability to enforce its rights under this Agreement or any other written notice of the nature of the law or order requiring disclosure and the disclosure to be made agreement entered into in accordance therewithconnection with this Agreement.
Appears in 1 contract
Access; Confidentiality. (a) Between Seller shall cause the Company from the date of this Agreement and hereof to the Closing, Seller shall Closing to (i) afford each of Parentgive Purchaser and its authorized representatives, Purchaserupon reasonable advance notice and during regular business hours, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices books, records, personnel, officers and other facilities and properties of the Business Company and to all books and records relating to the Business and to the employees and personnel of the Businessits Subsidiaries, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections thereof, upon reasonable advance notice and to make copies of such books and records during regular business hours, as they Purchaser may reasonably require request and (iii) cause the officers of the Company and its Subsidiaries to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such unaudited financial and operating data and other information concerning with respect to the Business business and properties of the Company as they is regularly prepared in the ordinary course that Purchaser may from time to time reasonably request; provided, however, that any such access shall be conducted at Purchaser's expense, at a reasonable time, under the supervision of Seller's or the Company's personnel and in such a manner as not to interfere unreasonably with the normal operations of the business of Seller or the Company. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to Notwithstanding anything contained in this Section 6.2or any other agreement between Purchaser and Seller executed prior to the date hereof, none of the Company, any Company Subsidiary, Seller or any Affiliate of Seller shall have any obligation to make available to Purchaser or its representatives, or provide Purchaser or its representatives with, any consolidated, combined or unitary Tax Return filed by Seller or any of its Affiliates or predecessors, or any related material, and nothing herein shall require either Seller or the Company to disclose any information to Purchaser if such disclosure would in Seller's reasonable discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement (including any confidentiality agreement to which Seller, the Company or any Affiliate of either is a party).
(b) On The Confidentiality Agreement shall be binding on the parties hereto and after in full force and effect until the Closingsecond anniversary of the Closing Date, during normal business hoursprovided that the Confidentiality Agreement, Seller will permit each of Parentdated January 20, Purchaser2003, Purchaser's Subsidiary and their authorized representativesshall terminate at the Closing only with respect to information relating solely to the Company and/or one or more Company Subsidiaries and/or Minority Subsidiaries except that, with respect to have access to and examine and make copies of all books and records of Seller any information relating to any Carve-out Subsidiary, such Confidentiality Agreement shall terminate with respect to information concerning such Carve-out Subsidiary on the Business which are not Secondary Closing applicable to such Carve-out Subsidiary. The information contained herein, in the Seller Disclosure Schedule or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms deemed, for purposes of the Confidentiality Agreement, dated January 20, 2003 only, to be Evaluation Material (as defined and subject to the exceptions contained in such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with Confidentiality Agreement) until the terms of the Confidentiality Agreement Closing; provided, however, that following the Closingthat, this subject to Section 6.2 and the Confidentiality Agreement shall not prohibit Parent5.19 (Purchaser Circular), Purchaser or may make disclosures of material Evaluation Material (after prior consultation with Seller with respect to such disclosure of material Evaluation Material) as Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from in its reasonable judgment, deems necessary in (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreementfilings with Governmental Entities, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or Circular and (iii) the disclosure of such information required by law or court order, provided presentations to funding sources and in individual meetings with Purchaser's shareholders. Purchaser and Seller acknowledge that, for purposes of the Confidentiality Agreement dated April 21, 2003, the term "Evaluation Material" shall be deemed to include material non-public information about the Company and the Company Subsidiaries, as well as trade secrets and proprietary information of the Company and the Company Subsidiaries. Notwithstanding anything in the Confidentiality Agreement to the contrary, either party may disclose information to the extent practicablesuch party, prior to in its reasonable judgment, deems such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithrequired by applicable securities laws or stock exchange rules.
Appears in 1 contract
Samples: Stock Purchase Agreement (Interpublic Group of Companies Inc)
Access; Confidentiality. (a) Between the date of this Agreement Effective Date and the ClosingClosing Date, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives provide reasonable access to all offices Buyer, its Affiliates and their respective accountants, engineers and other facilities of the Business representatives and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closingadvisers, during normal business hours, Seller will permit each of Parentto the Assets and the files, Purchaserbooks, Purchaser's Subsidiary records, documents, and their authorized representativesother information relating thereto (other than certain privileged documents, confidential third-party documents and personnel file records and evaluative records pertaining to have access to employees), and examine (ii) make available for inspection and make copying by Buyer originals or true and complete copies of all books and records of Seller any documents relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destructionforegoing, including the damage documents listed in any Schedule attached to this Agreement. Prior to any such access, Buyer shall notify Seller of its desire for such access, and Buyer and Seller shall reasonably cooperate and determine a mutually acceptable time and date for such access. All documents or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement. Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, and such information shall be held by Parenteach of their respective directors, Purchaserofficers, Purchaser's Subsidiary employees and their representatives in accordance with the terms agents from and against all Liabilities arising out of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) any and all statutory or common law liens or other Encumbrances for labor or materials furnished in connection with rights granted hereunder, including samplings, studies or surveys that Buyer may conduct with respect to the use Assets pursuant to this Section 8.7, or disclosure (ii) any injury to or death of any persons or damage to or destruction of property including the Assets and the Excluded Assets occurring as a result of such information which currently is known generally exercise of the rights granted under this Section 8.7 or activities conducted pursuant to this Section 8.7; provided that this indemnification shall not apply in respect of Liabilities arising from the public gross negligence or which subsequently has come into the public domainwillful and wanton misconduct of any of Seller, its Affiliates or their respective directors, officers, employees or agents. In addition, Buyer waives and releases all claims against Seller and its Affiliates, and their respective directors, officers, employees and agents, other than claims resulting from their gross negligence or willful and wanton misconduct, for injury to or death of any persons or damage to property arising from the exercise of rights granted to Buyer by way this Section 8.7 or the activities performed pursuant to this Section 8.7 by Buyer or Buyer’s agents or employees on, at, or about the Facility. The provisions of disclosure in violation this Section 8.7 shall survive the termination of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Buckeye Partners, L.P.)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable full and complete access to Seller's employees and during normal working hours to all books, records, offices and other facilities of the Business Seller and to all books and records relating to the Business and to the employees and personnel of the Businesseach Seller Subsidiary, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall conduct all such inspections under the supervision of personnel of Seller in a manner that will direct its employees minimize disruptions to render the business and operations of Seller and the Seller Subsidiaries and in a manner as to maintain the confidentiality of this Agreement. Nothing herein shall require Purchaser or Seller to disclose any assistance which information to the other party if such disclosure would: (a) cause significant competitive harm to it or its Affiliates or their respective competitive positions if the Transactions are not consummated; (b) jeopardize any attorney-client or other legal privilege; or (c) contravene any Applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which it or its Affiliates is a party); provided, however, that if Purchaser or Seller, as the case may reasonably request in examining be, relies on this sentence of Section 6.2(a) as a basis for such non-disclosure, Purchaser or utilizing records referred to in this Section 6.2Seller, as the case may be, shall nevertheless inform the other the general nature of the information not being disclosed and the basis for such non-disclosure.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may upon reasonable notice and at any time enter into and upon all or any portion of the Business' or any Business SubsidiarySeller's properties included in the Assets (including all Leased Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary Seller Subsidiaries to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Seller Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear their properties and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesbusinesses.
(fc) Any The provisions of the Confidentiality Agreement shall remain binding and in full force and effect until the Closing. Notwithstanding anything to the contrary contained herein or in the Confidentiality Agreement, the Confidentiality Obligations as they relate to the transactions contemplated by this Agreement shall not apply to the purported or claimed Federal income tax treatment of the transactions (the "Tax Treatment") or to any fact that may be relevant to understanding the purported or claimed Federal income tax treatment of the transactions (the "Tax Structure"), and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the Tax Treatment and Tax Structure of the transactions contemplated by this Agreement and any materials of any kind (including any tax opinions or other tax analyses) that relate to the Tax Treatment or Tax Structure. In addition, each party hereto acknowledges that it has no proprietary or exclusive rights to any tax matter or tax idea related to the transactions contemplated by this Agreement. The preceding sentence is intended to ensure that the transactions contemplated by this Agreement shall not be treated as having been offered under conditions of confidentiality for purposes of the Confidentiality Regulations and shall be construed in a manner consistent with such purpose. The information regarding contained herein, in the Business Disclosure Schedule or Assets heretofore or hereafter obtained from Seller delivered to Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and are incorporated herein by reference. All obligations of Purchaser under the Confidentiality Agreement shall terminate simultaneously with the Closing. Except as otherwise provided herein, Seller shall, and shall cause each Seller Subsidiary and their consultants, advisors and representatives to, treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning Seller and each Seller Subsidiary, and Seller shall not, and shall cause each Seller Subsidiary and their consultants, advisors and representatives not prohibit Parentto use such information to the detriment of Seller, Purchaser any Seller Subsidiary or Purchaser's Subsidiary from using , and providing Purchaser shall, and shall cause its consultants, advisors and representatives to, treat after the date hereof as strictly confidential (unless compelled to third parties disclose by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning Purchaser, and Purchaser shall not, and shall cause each its consultants, advisors and representatives not to use such information concerning to the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser detriment of Seller or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Upon reasonable notice to Seller, the date of this Agreement Company shall afford Purchaser’s officers, employees, counsel, accountants and other authorized representatives (“Representatives”) reasonable access, during normal business hours throughout the period prior to the Closing, Seller to the Company’s executive officers, properties, books, contracts and records and, during such period, shall furnish promptly to the Representatives all information concerning its business, properties, results of operations and personnel as may reasonably be requested; provided, however, that the Company may restrict the foregoing access to the extent that (i) afford each in the reasonable judgment of Parentthe Company or Seller, Purchaserany law, Purchaser's Subsidiary and their authorized representatives reasonable treaty, rule or regulation of any Governmental Entity applicable to the Company or Seller requires Seller or the Company to restrict or prohibit access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Businessany such properties or information, (ii) permit each in the reasonable judgment of Parentthe Company or Seller, Purchaser and Purchaser's Subsidiary the information is subject to make such inspections and confidentiality obligations to make copies of such books and records as they may reasonably require and a third party, or (iii) furnish each disclosure of Parentany such information or document could result in the loss of attorneyclient privilege; provided, however, that with respect to this clause (iii), the Company and/or its counsel shall use their reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to avoid the loss of attorneyclient privilege. The parties hereto will hold any such information which is nonpublic in confidence pursuant to the terms of the confidentiality agreement, previously executed, between Seller and Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning (the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2“Confidentiality Agreement”).
(b) On From and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their authorized representatives, to have access to the Company shall preserve and examine retain all information and make copies of all books and records of Seller the Company, including accounting, legal, personnel, auditing and other books and records and any documents relating to any governmental or nongovernmental claims, actions, suits, proceedings or investigations with respect to the Business which are not delivered to Purchaser Company or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring Company’s business on or prior to the date hereof and to transactions or events occurring prior to the date hereofClosing Date in a manner consistent with Purchaser’s document retention policy.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to Pending the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation Date, each of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business his and any Business Subsidiary its employees, representatives and agents to, cooperate maintain the confidentiality of the information and materials delivered to them or made available for their inspection pursuant to, or in connection with, this Agreement, except where such information, schedules and other documentation are required to be filed with any governmental authority or to the extent necessary to fulfill any agreement into which Seller and Purchaser may enter. If for any reason the transaction is not consummated and does not close, each of Parent, Purchaser, Purchaser's Subsidiary Seller and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigationPurchaser shall, and shall provide cause his and its employees, representatives and agents to, return to Parent, Purchaser, Purchaser's Subsidiary Company all such materials in their possession and their authorized representatives all plans, soil copies thereof in whatever form and shall forever preserve the confidentiality of all such information. Each of Purchaser and Seller acknowledge that the improper disclosure or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession use of or reasonably available such confidential information is likely to cause competitive harm to Seller (and the Company) or Purchaser that is not amenable to precise measurement or prediction, and consequently agrees that any Business Subsidiary breach or any threatened breach of their engineers, consultants this covenant may be enforced by injunctive relief or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tearspecific performance, as a result of Purchaser's action. Purchaser shall indemnify monetary damages alone would be difficult to calculate and is unlikely to fully compensate Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Company) or Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewiththerefor.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall cause the Company prior to the Closing to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give Purchaser and their its authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Business and to all books and records relating to the Business and to the employees and personnel of the BusinessCompany, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records thereof as they Purchaser may reasonably require request and (iii) cause the officers of the Company to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business business and properties of the Company as they Purchaser may from time to time reasonably request; provided, however, that any such access shall be conducted at Purchaser's expense, at a reasonable time, under the supervision of Seller's or the Company's personnel and in such a manner as reasonably necessary not to interfere substantially with the normal operation of the business of Seller or the Company. Each party will direct its employees Subject to render any assistance which the other party may reasonably request in examining or utilizing records referred to provisions of Section 5.4(h), notwithstanding anything contained in this Section 6.2or any other agreement between Purchaser and Parent and/or Seller executed prior to the date hereof, none of the Company, Parent, Seller or any of their respective Affiliates shall have any obligation to make available to Purchaser or its representatives, or provide Purchaser or its representatives with, any consolidated, combined or unitary Tax Return filed by Parent or any of its Affiliates or predecessors, or any related material (except as any such material may relate solely to the Company) and nothing herein shall require Parent, Seller or the Company to disclose any information to Purchaser if such disclosure would (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable laws, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which Parent, Seller, the Company or any of their respective Affiliates is a party).
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect until the Closing. The information contained herein, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to in the Business which are not Disclosure Schedule or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of Confidentiality Agreement as Evaluation Material (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this are incorporated herein by reference. Except as otherwise provided in Section 6.2 and the Confidentiality Agreement shall not prohibit Parent5.5, Purchaser or Purchaser's Subsidiary from using shall cause its consultants, advisors and providing representatives to third parties such information concerning treat the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation terms of this AgreementAgreement after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, (ii) in the use or disclosure opinion of such information that becomes available to Parentlegal counsel, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source by other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure requirements of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithlaw).
Appears in 1 contract
Access; Confidentiality. (a) Between From the date of this Agreement and until the Closing, Seller the Company shall, and shall (i) afford each of cause the Company's Subsidiaries to, give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives reasonable access at all reasonable times during normal business hours to all the agreements, contracts, books, records, analyses, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books its Subsidiaries and records relating to the Business their accountants and to the employees and personnel of the Businessaccountants' work papers, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties of the Company and its Subsidiaries as they Parent may from time to time reasonably request. Each party will direct request in writing and use reasonable best efforts to make available at all reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's and its employees to render any assistance which the other party Subsidiaries' business, properties, prospects and personnel as Parent may reasonably request request; provided, however, that the information provided or made available will not be provided or made available to Persons who are directly involved in examining pricing or utilizing records referred any other competitive activity at Parent or any Subsidiary of Parent; provided, further, 49 that Parent shall not use such information other than for purposes of assessing the financial condition of the Company for purposes of the Transactions, and shall not share, provide, make available or sell the information to any third party or use the information in any manner that would reasonably be considered a restraint on competition or result in a violation of any applicable Laws. Parent and the Purchaser agree that any information furnished pursuant to this Section 6.26.3(a) will be subject to the terms of the Confidentiality Agreement.
(b) On and As soon as practicable after the Closingexecution of this Agreement, during the Company shall permit Parent to electronically link the Company's financial reporting system to Parent's financial reporting system ("Hyperion"). Access to Hyperion will be provided by Parent's financial reporting staff and the tasks necessary to complete the link to Hyperion will be led by Parent's accounting staff, with the necessary assistance from the Company's accounting staff and other technical staff, if necessary, at no cost to the Company and provided that neither such installment nor the operation or use by Parent of Hyperion shall interfere with or disrupt the normal operation of the Company's business hoursor its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Hyperion software to be installed on a computer in the Company's accounting department; provided, Seller however, that the information retrieved from the Company's financial reporting system will permit each not be made available to persons who are directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent; provided, Purchaserfurther, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies that Parent shall not use such information other than for purposes of all books and records of Seller relating to assessing the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities financial condition of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare Company for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct purposes of the business of the Business transactions contemplated by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallAgreement, and shall cause not share, provide or sell the Business and information to any Business Subsidiary to, cooperate with each third party or use the information in any manner that could reasonably be considered a restraint on competition or result in a violation of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Businessapplicable Laws. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives provided under this Section 6.3(b) shall be subject to the terms of the Confidentiality Agreement
(c) From the date hereof until the Closing Date, the Company shall, and such information shall be held cause its Subsidiaries to, take actions reasonably requested by ParentParent to provide for the inclusion, Purchaserupon Closing, Purchaser's Subsidiary and their representatives in accordance with the terms of all of the Confidentiality Agreement Company's and its Subsidiaries' VOI inventory in the FairShare Plus Program of Parent; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement such cooperation shall not prohibit include the incurrence by the Company of any cost or liability in excess of $25,000 (other than costs or liabilities reimbursed in advance by Parent); provided, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning further, that the Assets or the Business as it may deem appropriate. The foregoing Company shall not preclude be required to take any actions that are reasonably likely to disrupt the sale of the Company's VOI inventory and club interests in any material respect unless and until all conditions to Parent, Purchaser 's obligation to close under this Agreement have been satisfied or Purchaser's Subsidiary from waived.
(d) (i) Parent shall be entitled to conduct reasonable due diligence on any Real Property or any other property managed or operated by the use 50 Company or disclosure any of the Subsidiaries, including land and building systems thereon, including but not limited to, title, the interior of any improvements and the structural elements thereof, and including, but not limited to, a Phase I and Phase II environmental site assessment of such information which currently is known generally to property, including testing and sampling for the public presence of any Materials of Environmental Concern, and any other test, analysis or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure inspection of such information that becomes available to property deemed appropriate by the Parent in the Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithsole discretion.
Appears in 1 contract
Access; Confidentiality. (a) Between STI shall cause the date of this Agreement US Company and the Closing, Seller US Company Subsidiaries and SBV shall cause the BVI Company and the BVI Subsidiaries prior to the Closing to (i) afford give Purchaser and each of Parent, Purchaser, Purchaser's Subsidiary and their its respective authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Business and to all books and records relating to the Business and to the employees and personnel of the BusinessCompanies, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections and to make copies of such books and records thereof as they Purchaser may reasonably require request and (iii) cause the member or officers of each Company to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business business and properties of each Company as they Purchaser may from time to time reasonably request; provided, however, that any such access shall be conducted at a reasonable time under the reasonable supervision of any of the personnel of the Seller Parties or the Companies and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated hereby and not to interfere with the normal operation of the business of any Seller Party or Company. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to Notwithstanding anything contained in this Section 6.2or any other agreement between Purchaser, Parent and the Seller Parties executed prior to the date hereof, no Company, Seller Party or any Affiliate of the Seller Parties shall have any obligation to make available to Purchaser, Parent or any of their respective representatives, or provide Purchaser, Parent or any of their respective representatives with, any consolidated, combined or unitary Tax Return filed by any Seller Party or any of its Affiliates or predecessors, or any related material.
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect. The information contained herein, in the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not Disclosure Schedule or delivered to Purchaser or Purchaser's Subsidiary their respective authorized representatives pursuant hereto shall be deemed to be “Confidential Information” (including correspondenceas defined and subject to the exceptions contained in the Confidentiality Agreement) until the Closing. Except as otherwise provided in Section 5.5 or in this Section 5.2(b), memorandaeach of Purchaser and Parent shall cause its consultants, books advisors and representatives to treat the terms of account, Tax records and the like) and relating to events occurring prior to this Agreement after the date hereof and as strictly confidential (unless compelled to transactions disclose by judicial or events occurring prior to administrative process or, in the date hereof.
(c) Parentopinion of legal counsel, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities by other requirements of law). Notwithstanding the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller foregoing or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms provision of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms each of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser and the Seller Parties shall be permitted to disclose the tax treatment and tax structure of the transaction (including any materials, opinions or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior analyses relating to such disclosure required by law tax treatment or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithtax structure).
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Nptest Holding Corp)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating Subject to the Business and to the employees and personnel of the BusinessConfidentiality Agreement (as defined below), (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller Target shall, and shall cause the Business and any Business Subsidiary each of its Subsidiaries to, cooperate with each afford to Acquiror and to the officers, employees, accountants, counsel, financial advisors, lenders and other representatives of ParentAcquiror, Purchaserreasonable access during normal business hours during the period prior to the Effective Time to all their respective properties, Purchaser's Subsidiary books, contracts, commitments, personnel and their authorized representatives in conducting records and, during such investigationperiod, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigationTarget shall, and shall provide cause each of its Subsidiaries to, prepare or cause to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf ofbe prepared, or in furnish promptly to Acquiror (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the possession requirements of Federal or reasonably available to Seller state securities Laws or any Business Subsidiary the Federal tax Laws, or any of their engineersstate, consultants local or agents foreign tax Laws and (ii) all other information relating to environmental matters in respect concerning its business, properties and personnel as Acquiror may reasonably request (including Target's outside accountants' work papers). Each of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear Target and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality AgreementAcquiror will hold, and such will cause its respective officers, employees, accountants, counsel, financial advisors and other representatives and Affiliates (as defined in Section 9.03(g)) to hold, any nonpublic information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provideddated as of October, however1997, that following between Target and Acquiror (the Closing"Confidentiality Agreement").
(b) Target shall cooperate fully (with Acquiror responsible for all reasonable costs and expenses) with Acquiror in connection with such financing transactions as Acquiror may undertake. In connection therewith, this Section 6.2 at the request of Acquiror, Target (with Acquiror responsible for all reasonable costs and expenses) will cause its officers, directors, employees, representatives, consultants and advisors to assist in the Confidentiality Agreement preparation of offering memoranda and pro forma financial information and to participate in any road show presentations Acquiror shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure undertake in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representativesconnection therewith, provided that such source is assistance shall not known unreasonably interfere with the performance by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure any of such informationofficers, directors, employees, representatives, consultants or (iii) advisors of services for Target. In furtherance of the disclosure foregoing, Target shall use its commercially reasonable efforts to cause its auditors to provide and allow the filing of such information consents and "comfort letters" and other documentation as may be required by law or court order, provided thatfor the inclusion of any financial statements of Target prepared at the request of Acquiror, to the extent practicable, prior to allow such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure financial statements to be made used in accordance therewithpublic or private financing documents.
Appears in 1 contract
Access; Confidentiality. (a) Between From the date of this Agreement and hereof to ----------------------- the ClosingEffective Time, Seller upon reasonable notice, the Company shall (iand shall cause each of its Subsidiaries to) afford each to the officers, employees, accountants, counsel, financing sources and other representatives of Parent, Purchaseraccess, Purchaser's Subsidiary and their authorized representatives reasonable access during normal business hours during the period prior to the Appointment Date, to all offices its properties, books, contracts, commitments and records and, during such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to the Parent (a) a copy of each report, schedule, registration statement and other facilities of the Business and to all books and records relating document filed or received by it during such period pursuant to the Business and to the employees and personnel requirements of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require federal securities laws and (iiib) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and all other information concerning the Business its business, properties and personnel as they Parent may from time to time reasonably request. Each party Access shall include the right to conduct such environmental studies and tests as Parent, in its reasonable discretion, shall deem appropriate. After the Appointment Date, the Company shall provide Parent and such persons as Parent shall designate with all such information, at such time as Parent shall request. Unless otherwise required by law and until the Appointment Date, Parent and Purchaser will direct its employees hold any such information which is non-public in confidence in accordance with, and will otherwise abide by, the provisions of the Confidentiality Agreement. No investigation pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.26.5(a) shall affect any representation or warranty made by the Company hereunder.
(b) On and after Prior to the Closing, during normal business hoursthe Company and its accountants, Seller will permit each of Parentcounsel, Purchaser, Purchaser's Subsidiary agents and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary other representatives shall cooperate with Sellerthe Purchaser by providing information about the Company which is necessary for the Purchaser and its accountants, at Seller's expenseagents, counsel and other representatives to prepare the Disclosure Documents and such other documents and other reasonable requests with respect to such documents. Notwithstanding the penultimate sentence of Section 6.5(a), the Purchaser may disclose, or cause its representatives to disclose, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities at the request of the Business or Seller prior Purchaser, the Company shall and shall cause its Subsidiaries to, disclose information concerning the Company and its Subsidiaries, and their respective businesses, assets and properties, and the transactions contemplated by this Agreement in the Disclosure Documents and to the Closing as Seller may reasonably require after the Closing prospective financing sources in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its AffiliatesTransactions.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access to all offices and other facilities of the Business Division and to all books and records relating to the Business and to the employees and personnel of the BusinessDivision, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business Division as they Purchaser may from time to time reasonably request, subject in each case to compliance with the regulatory restrictions on such activities to which Seller is subject. Each party Purchaser and its authorized representatives shall conduct all such inspections in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2business and operations of the Division.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers engineers, or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's Division’s properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary Division to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fc) Any The provisions of the Confidentiality Agreement shall remain binding and in full force and effect until the Closing, except that the Confidentiality Agreement shall not apply to any documents prepared in connection with a proceeding before or filed with, or other disclosure made to, a court, arbitration tribunal or mediation service in order to enforce Purchaser’s rights arising in connection with the termination of this Agreement pursuant to Section 7.2. The information regarding contained herein, in the Business Disclosure Schedule or Assets heretofore or hereafter obtained from Seller delivered to Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following are incorporated herein by reference. All obligations of the Closing, this Section 6.2 and Purchaser under the Confidentiality Agreement with respect to Information regarding the Division shall not prohibit Parentterminate simultaneously with the Closing and all other obligations of Purchaser under the Confidentiality Agreement with respect to Information of Seller shall survive in accordance with its terms. Except as otherwise provided herein or by law, Purchaser Seller shall cause, and the consultants, advisors and representatives of itself to, treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or Purchaser's Subsidiary from using administrative process or, in the opinion of legal counsel, by other requirements of law) the terms of this Agreement and providing to third parties such all nonpublic, confidential or proprietary information concerning the Assets or Division, and Seller shall not, and shall cause and the Business as it may deem appropriate. The foregoing shall consultants, advisors and representatives of itself not preclude Parentto, Purchaser after the date hereof, use such information to the detriment of the Division or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between At the date reasonable request of this Agreement Buyer, and the Closingupon reasonable advance notice, Seller Sellers and Worldspan shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time prior to the Closing give or cause to be given to the officers, employees, accountants, counsel and other authorized representatives of Buyer (collectively, “Buyer’s Representatives”) full access during normal business hours to (i) any and all premises, properties, files, books, records, documents and other information of Sellers’ Relevant Worldspan Owner Entities (insofar as such information relates to Worldspan and its Subsidiaries), Worldspan and its Subsidiaries and to those officers, employees, accountants, counsel and other authorized representatives of Worldspan and its Subsidiaries who have relevant knowledge, and (ii) all such other information in Sellers’ or Worldspan’s possession otherwise to the extent concerning Sellers’ Relevant Worldspan Owner Entities (insofar as such information relates to Worldspan and its Subsidiaries), Worldspan and its Subsidiaries as Buyer may reasonably request, in each case to the extent that Sellers and Worldspan may do so without violating confidentiality undertakings of Sellers, Sellers’ Relevant Worldspan Owner Entities, Worldspan and its Subsidiaries or any of their Affiliates. Each party will direct Notwithstanding the foregoing, Buyer shall not have access to personnel records of Worldspan and its employees Subsidiaries relating to render individual performance or evaluation records, medical histories or other information relating to the personnel of Worldspan and its Subsidiaries the disclosure of which, in Sellers’ or Worldspan’s good faith opinion, is reasonably likely to subject Sellers, Sellers’ Relevant Worldspan Owner Entities, Worldspan or any assistance which of its Subsidiaries to risk of liability. Buyer shall use its reasonable efforts to conduct its investigation in a manner designed to avoid any unreasonable interference with the other party may reasonably request in examining operations of Sellers, Sellers’ Relevant Worldspan Owner Entities, Worldspan or utilizing records referred to in this Section 6.2its Subsidiaries.
(b) On The provisions of the Mutual Non-Disclosure Agreement, dated November 28, 2001, between Citicorp Venture Capital, Ltd. and after Worldspan, the ClosingMutual Non-Disclosure Agreement, during normal business hoursdated December 3, Seller will permit each of Parent2001, Purchaser, Purchaser's Subsidiary between OTPP and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records Worldspan and the like) Mutual Non-Disclosure Agreement, dated July 15, 2002, between M. Xxxxxxx X’Xxxx and relating Worldspan (collectively, the “Confidentiality Agreements”), shall survive the execution of this Agreement and shall apply with respect to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make all information made available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject Buyer’s Representatives pursuant to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expenseSection 5.1.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Ws Financing Corp)
Access; Confidentiality. (a) Between the date of this Agreement and Prior to the Closing, Seller the Company shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give Purchaser and their its authorized representatives Representatives reasonable access during regular business hours to all books, records, personnel, offices and other facilities and properties of the Business Company and the Company Subsidiaries and shall direct its auditors to give Purchaser access to all books and records relating audit work papers, to the Business and extent reasonably obtainable, subject to the employees and personnel terms of the Businessany reasonable access restrictions required by such auditors as a condition to receipt of such work papers, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections and to make copies of such books and records thereof as they Purchaser may reasonably require request and (iii) cause the officers of the Company to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning 26 with respect to the Business business and properties of the Company and the Company Subsidiaries as they Purchaser may from time to time reasonably request; provided that any such access shall be conducted at Purchaser's expense, at a reasonable time, under the supervision of the Company's personnel and in such a manner as to maintain the confidentiality of this Agreement and the Transactions and not to interfere with the normal operation of the business of the Company. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to Notwithstanding anything contained in this Section 6.2or any other agreement between Purchaser and the Company executed prior to the date hereof, none of the Company, any Company Subsidiary or any Affiliate of the Company or any Company Subsidiary or any Stockholder or any Affiliate of any Stockholder shall have any obligation to make available to Purchaser or its representatives, or provide Purchaser or its representatives with, any consolidated, combined or unitary Tax Return filed by any Stockholder or any of their Affiliates (other than the Company and the Company Subsidiaries) or predecessors, or any related material, and nothing herein shall require the Company to disclose any information to Purchaser if such disclosure would in the Company's good faith judgment (i) include individual customer or per unit pricing data, (ii) jeopardize any attorney-client or other legal privilege, or (iii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which any Stockholder, the Company or any Company Subsidiary is a party).
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms The provisions of the Confidentiality Agreement providedshall remain binding and in full force and effect. The information contained herein, howeverin the Disclosure Schedule or delivered to Purchaser, that following Sub or their authorized Representatives pursuant hereto shall be deemed to be Confidential Information (as defined and subject to the Closing, exceptions contained in the Confidentiality Agreement). Except as otherwise provided in Section 5.3 and this Section 6.2 5.2, each of Purchaser and Sub shall cause its Representatives to treat the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation terms of this AgreementAgreement after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, (ii) in the use or disclosure opinion of such information that becomes available to Parentlegal counsel, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source by other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure requirements of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithLaw).
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall cause the Company prior to the Closing to (i) afford each of Parentgive Purchaser and its authorized representatives, Purchaserupon reasonable advance notice and during regular business hours, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices books, records, Tax Returns, personnel, representatives, officers and other facilities and properties of the Business and to all books and records relating to the Business and to the employees and personnel of the BusinessCompany, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections thereof, upon reasonable advance notice and to make copies of such books and records during regular business hours, as they Purchaser may reasonably require request and (iii) cause the officers of the Company to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business as they business and properties of the Company that Purchaser may from time to time reasonably request. Each party will direct its employees ; provided, however, that any such access shall be conducted at Purchaser’s expense, at a reasonable time, under the supervision of Seller’s or the Company’s personnel and in such a manner as to render any assistance which not unreasonably interfere with the other party may reasonably request in examining normal operations of the business of Seller or utilizing records referred to in this Section 6.2the Company.
(b) On Purchaser and after its Affiliates shall treat as confidential all the Closing, during normal business hours, information provided by Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) Company pursuant to this Section 5.2 or otherwise in connection with the consummation of the transactions contemplated by this Agreement and relating shall not use such information except in connection with the transactions contemplated hereby or disclose such information to events occurring third parties, without the prior written consent of Seller, other than to Purchaser’s advisors and consultants or as required by Law; provided, however, that prior to the date hereof and to transactions disclosing any such confidential information as required by Law, Purchaser shall promptly notify Seller so that Seller may seek a protective order or events occurring prior to the date hereofother appropriate remedy.
(c) ParentSeller and its Affiliates shall not make known, Purchaser and Purchaser's Subsidiary shall cooperate with Sellerdisclose, at Seller's expensefurnish, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities utilize any of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct confidential information of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may Company at any time enter into and upon all or any portion of during the Business' or any Business Subsidiary's properties three (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, 3)-year period immediately following the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyedClosing Date, other than ordinary wear and tearas expressly permitted herein, or as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted required by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement Law; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing prior to third parties disclosing any such confidential information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law Law, Seller shall promptly notify Purchaser so that Purchaser may seek a protective order or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithother appropriate remedy.
Appears in 1 contract
Access; Confidentiality. (a) Between From the date of this Agreement and hereof until the Initial Closing, Seller shall the Selling Shareholders (other than IFC and NMP) will use their respective reasonable efforts to cause the Company to:
(i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access during business hours to all books and records (except to the extent sensitive information is contained therein regarding Purchaser and/or the KSO Agreement), offices and other facilities of the Business Company and real property owned, leased or used by the Company and to all books personnel and records relating to the Business and to the employees and personnel suppliers of the Business, Company;
(ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such reasonable inspections during business hours (including making such investigations and assessments, as Purchaser deems reasonably necessary or appropriate in its sole and absolute discretion), of the environmental condition of such properties or the business conducted there and to make copies of such books and records as they it may reasonably require and (except to the extent sensitive information is contained therein regarding Purchaser and/or the KSO Agreement); and
(iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall conduct all such inspections in a manner that will direct minimize disruptions to the business and operations of the Company. In addition, in the event that Purchaser identifies matters in the course of its employees due diligence which Purchaser determines, in its sole discretion, are not satisfactory, Purchaser shall use its reasonable efforts to render any assistance which provide the other party Selling Shareholders with a reasonable opportunity to address Purchaser's concerns. The Company and each of the Selling Shareholders shall continue to afford Purchaser and its authorized representative, such reasonable access during business hours, and to permit Purchaser to make such inspections and copies as Purchaser may reasonably request in examining or utilizing records referred (except to in this Section 6.2the extent sensitive information is contained therein regarding Purchaser and/or the KSO Agreement) to enable it to satisfactorily address its concerns.
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect until the Initial Closing, during normal business hoursexcept that the Confidentiality Agreement shall not apply to any documents prepared in connection with or filed with, Seller will permit each of Parentor other disclosure made to, Purchasera court, arbitration tribunal or mediation service in order to enforce any Purchaser's Subsidiary and their authorized representatives, rights arising in connection with the termination of this Agreement pursuant to have access to and examine and make copies of all books and records of Seller relating to the Business which are not Article 9. The information contained in this Agreement or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of Confidentiality Agreement as Confidential Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Initial Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and are incorporated herein by reference. All obligations of Purchaser under the Confidentiality Agreement shall not prohibit Parentterminate simultaneously with the Initial Closing. From the date hereof and at all times thereafter except as otherwise provided herein, each of the Selling Shareholders and Purchaser shall, and, other than IFC and NMP, shall cause the Company and its consultants, advisors and representatives to, treat (unless compelled to disclose by judicial or Purchaser's Subsidiary from using administrative process or, in the reasonable opinion of the disclosing party, by other requirements of law) the terms of this Agreement and providing to third parties such the Transactions and all nonpublic, confidential or proprietary information concerning the Assets or the Business Company as it may deem appropriatestrictly confidential. The foregoing Selling Shareholders shall not preclude Parentuse (at all times), Purchaser and other than IFC and NMP, shall cause the Company (from the date hereof to the Initial Closing Date) and its consultants, advisors and representatives to refrain from using, such information to the detriment of the Company or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Prior to the Closing, Seller shall permit, and cause the Acquired Companies to permit, Purchaser and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to Seller, to the assets and properties of the Acquired Companies and the Books and Records, as well as reasonable access to the employees, advisors and counsel of Seller and the Acquired Companies, to the extent not prohibited by applicable Law or Seller’s or the Acquired Companies’ privacy policies, for any reasonable business purpose relating to this Agreement or any Ancillary Agreement; provided that any Books and Records or other information that is subject to an attorney-client or other legal privilege or obligation of confidentiality or non-disclosure shall not be made so accessible. In exercising its rights hereunder, Purchaser shall conduct itself so as not to unreasonably interfere in the conduct of Seller’s or the Acquired Companies’ businesses.
(b) As of the date hereof, Purchaser’s obligations to the Acquired Companies pursuant to the Confidentiality Agreement shall terminate, except that the non-solicitation and any applicable non-hire provisions shall continue until the Closing Date, at which time they shall terminate.
(c) Following the Closing, without limiting the obligations of Purchaser to provide access pursuant to Section 2.3(b), to the extent not prohibited by applicable Law, Purchaser shall (i) permit Seller and its Affiliates, during regular business hours and upon reasonable advance notice to Purchaser, through their representatives, the right to examine and make copies of the Books and Records concerning the business of the Acquired Companies prior to the Closing for any reasonable business purpose relating to this Agreement or any Ancillary Agreement, including the preparation or examination of Seller’s and its Affiliates’ governmental, regulatory and Tax filings and financial statements and the conduct of any litigation, arbitration or dispute resolution, whether pending or threatened, concerning the business of the Acquired Companies prior to the Closing and the transactions contemplated by this Agreement or the Ancillary Agreements; and (ii) maintain the Books and Records for the foregoing examination and copying for a period of not less than seven (7) years following the Closing (or longer if required by applicable Law). Access to the Books and Records shall be at Seller’s sole cost and expense and may not unreasonably interfere with the conduct of Purchaser’s or its Affiliates’ businesses. Notwithstanding the foregoing, any and all such Books and Records may be destroyed by Purchaser after the seventh (7th) anniversary of the Closing Date (or longer if required by applicable Law).
(d) Following the Closing, to the extent not prohibited by applicable Law, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the ClosingAffiliates, during normal regular business hourshours and upon reasonable advance notice to Seller, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and through their authorized representatives, the right to have access to and examine and make copies of all books the Historical Books and records of Seller Records for any reasonable business purpose relating to this Agreement or any Ancillary Agreement, including the Business which are not delivered to Purchaser preparation or examination of Purchaser's Subsidiary pursuant hereto (including correspondence’s and its Affiliates’ governmental, memoranda, books of account, regulatory and Tax records filings and financial statements and the like) and relating to events occurring prior to conduct of any litigation, arbitration or dispute resolution, whether pending or threatened, concerning the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities business of the Business or Seller Acquired Companies prior to the Closing as Seller may reasonably require after and the transactions contemplated by this Agreement or the Ancillary Agreements; and (ii) maintain the Historical Books and Records for the foregoing examination and copying for a period of not less than seven (7) years following the Closing in connection (or longer if required by applicable Law). Access to the Historical Books and Records shall be at Purchaser’s sole cost and expense and may not unreasonably interfere with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of Seller’s or its Affiliates’ businesses. Notwithstanding the business foregoing, any and all such Books and Records may be destroyed by Seller after the seventh (7th) anniversary of the Business Closing Date (or longer if required by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expenseapplicable Law).
(e) Parent, Purchaser, Purchaser's Subsidiary Seller acknowledges that it may receive confidential and their authorized representatives proprietary information of Purchaser and its Affiliates pursuant to actions contemplated or required under the terms of this Agreement both before or following the Closing (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties “Purchaser Confidential Information”). Information that is (including all Real Propertyi) in order the public domain through no breach by Seller or its Subsidiaries, (ii) in Seller’s or its Subsidiaries’ possession, to investigate and assessthe Knowledge of Seller, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, free of any obligation of confidence prior to the environmental condition receipt of such properties information, (iii) received by Seller or its Subsidiaries’ from a third party, to the business conducted thereat. Such investigation may includeKnowledge of Seller, but need not be limited to, the performance without any breach of soil and surface a confidentiality obligation from such third party to Purchaser or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf ofits Affiliates, or in the possession of (iv) independently discovered or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted developed by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries without the use of any Purchaser Confidential Information shall not, in each case, constitute Purchaser Confidential Information. Seller agrees not to disclose, and to cause its Subsidiaries not to disclose, the Purchaser Confidential Information to any party except (A) to its Affiliates, employees, officers, directors, representatives, and advisors (“Seller Representatives”) who have a need to know such information in connection with the matters contemplated by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall this Agreement (the “Permitted Use”) and who have agreed to be subject to bound by the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.5.1(e),
Appears in 1 contract
Samples: Stock Purchase Agreement
Access; Confidentiality. (a) Between Pulaski shall permit Kearny and its representatives reasonable access to its properties and make available to them all books, papers and records relating to the assets, properties, operations, obligations and liabilities of Pulaski, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors (and any committees thereof) (other than minutes of any confidential discussion of this Agreement and the transactions contemplated hereby), and stockholders, organizational documents, bylaws, material contracts and agreements, filings with any regulatory authority, accountants' work papers, litigation files, plans affecting employees, and any other business activities or prospects in which Kearny may have a reasonable interest (provided that Pulaski shall not be required to provide access to any information that would violate their attorney-client privilege or any employee or customer privacy policies, laws or regulations). Pulaski shall make its respective officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with Kearny and its representatives. Pulaski Savings shall provide in a timely manner to Bank's officer in charge of retail banking copies of current rate sheets for all deposit and loan products. Pulaski shall permit Kearny, at its expense, to cause a "phase I environmental audit" and a "phase II environmental audit" to be performed at any physical location owned or occupied by Pulaski, provided that such audit is contracted for within forty-five days of the date of this Agreement and commenced as soon as practicable thereafter. The parties will hold all such information delivered in confidence to the Closingextent required by, Seller shall (i) afford each of Parentand in accordance with, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities the provisions of the Business November 2001 confidentiality agreement between Pulaski and to all books and records relating to Kearny (the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2"Confidentiality Agreement").
(b) On Kearny agrees to conduct such investigations and after discussions hereunder in a manner so as not to interfere unreasonably with normal operations and customer and employee relationships of the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofother party.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior In addition to the Closing as Seller may reasonably require after access permitted by subparagraph (a) above, from the date of this Agreement through the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense Date, Pulaski shall permit employees of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full Bank access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect problem loans, loan restructurings and loan work-outs of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesPulaski Savings.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between ARC will provide AMH and its employees, accountants, counsel and other authorized representatives, during the period from the date of this Agreement and hereof until the Closing (or any Partial Deferred Closing), Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives with reasonable access to all offices and other facilities of the Business and to all premises, employees, books and records relating to and properties of ARC and each Subject Company upon reasonable advance notice during normal business hours, provided that such access does not interfere with the Business normal operations of ARC and to the employees Subject Companies. ARC will, and personnel of the Businesswill cause each Subject Company to, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary AMH with such financial and operating operational data and other information concerning the Business with respect to their respective businesses and properties as they AMH may from time to time reasonably request. Each party will direct Any information concerning ARC and the Subject Companies obtained by AMH or its employees representatives pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives 4.2 shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary AMH and their its representatives in accordance with the terms of the Confidentiality Agreement Agreement. Notwithstanding the obligations contained in this Section 4.2, ARC and the Subject Companies shall not be required to provide access to or to disclose information where such access or disclosure would result in the loss of any attorney-client privileges or protections or contravene any Applicable Law or binding agreement in effect; provided, however, that following the Closing, this Section 6.2 parties hereto shall cooperate in seeking and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing use reasonable best efforts to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or find a way to allow disclosure of such information which currently is known generally in a manner that does not result in any of the foregoing consequences. Notwithstanding anything to the public or which subsequently has come into the public domain, other than by way of disclosure contrary contained in violation of this Agreement, neither AMH’s review of any matters related to the transactions contemplated by this Agreement, including the review of the business or financial and other conditions of ARC or any of the Subject Companies conducted by the officers, employees, accountants, counsel and other authorized representatives or agents of AMH or its Affiliates, nor the knowledge of AMH or any of its Affiliates with respect to any such matters, whether or not resulting from any such review, whether prior to or after the date hereof, shall affect (iia) the use representations and warranties made by ARC in or disclosure pursuant to this Agreement or (b) the remedies of AMH for breaches of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure representations and the disclosure to be made in accordance therewithwarranties.
Appears in 1 contract
Samples: Transaction Agreement (Apollo Global Management LLC)
Access; Confidentiality. (a) Between From the date of this Agreement until the Effective Time, the Company shall, and shall cause the ClosingCompany Subsidiaries to, Seller shall (ia) afford each of Parentupon reasonable prior notice, give Parent and Purchaser, Purchaser's Subsidiary their officers and a reasonable number of their employees and their authorized representatives Representatives, reasonable access during normal business hours to all the Company Contracts, books, records, analysis, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books the Company Subsidiaries and records relating to the Business their accountants and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require accountants’ work papers and (iiib) furnish each of Parent, Parent and Purchaser and Purchaser's Subsidiary on a timely basis with such financial and operating data and other information concerning with respect to the Business Company Contracts and to the business and properties of the Company and the Company Subsidiaries as they Parent and Purchaser may from time to time reasonably request. Each party will direct request and use its employees reasonable efforts to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, make available at all reasonable times during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating hours to the Business which are not delivered to officers, employees, accountants, counsel, financing sources and other representatives of Parent and Purchaser or Purchaser's Subsidiary pursuant hereto the appropriate individuals (including correspondencemanagement personnel, memorandaattorneys, books of account, Tax records accountants and the likeother professionals) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities for discussion of the Business Company’s business, properties, prospects and personnel as Parent or Seller prior to the Closing as Seller Purchaser may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatrequest. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the The terms of the Confidentiality Agreement provided, however, that following the Closing, shall apply to any information provided to Parent or Purchaser pursuant to this Section 6.2 or otherwise in connection with the transactions contemplated by this Agreement and Parent and Purchaser hereby agree to be bound by the Confidentiality Agreement with respect to such information as if Parent and Purchaser were signatories thereto. No investigation heretofore conducted or conducted pursuant to this Section 6.2 shall affect any representation or warranty made by the parties hereunder. Notwithstanding anything to the contrary set forth herein, the Company shall not prohibit Parentbe required to provide access to, Purchaser or Purchaser's Subsidiary from using and providing to third parties disclose information, where such information concerning access or disclosure would jeopardize the Assets attorney-client privilege of the Company or the Business as it may deem appropriate. The foregoing Company Subsidiaries or contravene any applicable law or contract entered into prior to the date of this Agreement (provided that, in such circumstance, the Company shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use cooperate with Parent to implement a procedure to permit access to or disclosure of such information which currently is known generally in a manner that would not reasonably be expected to jeopardize the public attorney/client privilege or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of contravene such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by applicable law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithcontract).
Appears in 1 contract
Access; Confidentiality. (a) Between The Company will provide each Investor and its respective employees, accountants, counsel and other authorized representatives, during the period from the date of this Agreement and hereof until the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives with reasonable access to all offices and other facilities of the Business and to all premises, employees, books and records relating to the Business and to the employees and personnel properties of the BusinessCompany and its Subsidiaries upon reasonable advance notice during normal business hours, (ii) permit each provided that such access does not interfere with the normal operations of Parentthe Company and its Subsidiaries. The Company will, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) will cause its Subsidiaries to, furnish each of Parent, Purchaser and Purchaser's Subsidiary Investor with such financial financial, operational, regulatory and operating compliance data and other information concerning the Business with respect to its respective businesses, assets, rights, properties liabilities and obligations as they Investor may from time to time reasonably request. Each party will direct Any information concerning the Company and its employees Subsidiaries obtained by each Investor or its respective representatives pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives 4.2 shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary each Investor and their its respective representatives in accordance with the terms of the Confidentiality Agreement Agreement.
(b) Notwithstanding the obligations contained in this Section 4.2, the Company and its Subsidiaries will not be required to provide access to or to disclose information where such access or disclosure would result in the loss of any attorney-client privileges or protections or contravene any Applicable Law or binding agreement in effect; provided, however, that following the Closing, this Section 6.2 parties hereto shall cooperate in seeking and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing use reasonable best efforts to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or find a way to allow disclosure of such information which currently is known generally in a manner that does not result in any of the foregoing consequences. Notwithstanding anything to the public or which subsequently has come into the public domain, other than by way of disclosure contrary contained in violation of this Agreement, neither Investor’s review of any matters related to the transactions contemplated by this Agreement, including the review of the business or financial and other conditions of the Company and its Subsidiaries conducted by the officers, employees, accountants, counsel and other authorized representatives or agents of each Investor or its respective Affiliates, nor to the knowledge of each Investor with respect to any such matters, whether or not resulting from any such review, whether prior to or after the date hereof, shall affect (iia) the use representations and warranties made by the Company in or disclosure pursuant to this Agreement or (b) the remedies of Investor for breaches of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure representations and the disclosure to be made in accordance therewithwarranties.
Appears in 1 contract
Access; Confidentiality. (a) Between Each Gateway Party shall permit Investors and their representatives reasonable access to its properties and make available to them all books, papers and records relating to the date assets, properties, operations, obligations and liabilities of Gateway, including, but not limited to, all books of account (including the general ledger), tax records, minute books of meetings of boards of directors (and any committees thereof) (other than minutes of any confidential discussion of this Agreement and the Closingtransactions contemplated hereby), Seller and stockholders, organizational documents, bylaws, material contracts and agreements, filings with any regulatory authority, accountants’ work papers, litigation files, plans affecting employees, and any other business activities or prospects in which Investors may have a reasonable interest (provided that a Gateway Party shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable not be required to provide access to all offices and other facilities of the Business and to all books and records relating to the Business and to the any information that would violate its attorney-client privilege or any employee or customer privacy policies, laws or regulations). Each Gateway Party shall make its respective officers, employees and personnel of the Business, (ii) permit each of Parent, Purchaser agents and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including counsel and independent public accountants) available to confer with Investors and their representatives. GCF Bank shall provide in a timely manner to Investors Bank’s officer in charge of retail banking copies of current rate sheets for all deposit and loan products. Each Gateway Party shall permit Investors Bank, at its designated engineers or consultants) may expense, to cause a “Phase I Environmental Audit” and a “Phase II Environmental Audit” to be performed at any time enter into and upon all physical location owned or any portion of the Business' occupied by a Gateway Party or any Business a Gateway Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement ; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser with respect to any such “Phase I Environmental Audit” or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from “Phase II Environmental Audit”: (i) all entries on such properties shall be conducted during normal business hours and with at least twenty-four (24) hours’ advance notice to GCF Bank and shall be conducted in such a manner so as not to interfere with the use and occupancy of the property or disclosure the business operations of such information which currently is known generally to the public GCF Bank, and Gateway Party or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, any Gateway Subsidiary; (ii) immediately after any entry on the use or disclosure of such information that becomes available to Parentproperty, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or Investors Bank shall restore the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, property to the extent practicable, condition in which it existed immediately prior to such disclosure required by law entry. Investors Bank shall defend, indemnify, and hold GCF Bank, each Gateway Party and each Gateway Affiliate, and its and their respective officers, employees, agents and authorized representatives harmless from and against any loss, claim, liability, damage, cost, or court order Parentexpense (including without limitation, Purchaser reasonable attorneys’ fees) arising out of any entries and activities of Investors Bank or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law its agents, contractors or order requiring disclosure and the disclosure to be made in accordance therewithemployees.
Appears in 1 contract
Access; Confidentiality. (a) Between Subject to the date protections of this Agreement the Confidentiality Agreement, Sellers shall, and the Closingshall cause Company to, Seller shall (i) afford each provide Buyer, its authorized Representatives and its prospective sources of Parentfinancing, Purchaserthrough their respective Representatives, Purchaser's Subsidiary and their authorized representatives reasonable access during regular business hours and upon reasonable notice to all offices and other facilities of the Business and to all assets, properties, contracts, commitments, books and records relating to of Company for the Business and to the employees and personnel purpose of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make making such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information investigations concerning the Business affairs of Company as they Buyer may desire, and Sellers will furnish Buyer such information as Buyer may from time to time reasonably requestrequest for such purpose. Each party Sellers shall cause the officers and employees of Company to assist Buyer in making any such investigation and will direct its cause the counsel, accountants, consultants and other non-employee Representatives of Company to be reasonably available to Buyer for such purposes. Without limitation of the foregoing, Sellers will cause Company to (i) permit interviews of Company’s key employees, including each of the employees listed on Schedule K (the “Key Employees”), and such other employees as Buyer reasonably requests and (ii) permit Buyer to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2conduct an on-site due diligence investigation of each of Company’s Facilities.
(b) On and Within seven (7) business days after the Closingend of each calendar month ending during the period from the date hereof through the Closing Date, during normal business hoursSellers shall or shall cause Company to furnish to Buyer an unaudited monthly balance sheet of Company as of the end of the month then ended and related statements of income, Seller will permit each changes in member’s capital and cash flows for such month and for the period from January 1, 2012 through the end of Parentsuch month (the “Interim Financials”). Each of the Interim Financials (A) shall be prepared in accordance with GAAP, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all (B) shall be consistent with Company’s books and records and (C) shall fairly and accurately presents the financial position of Seller relating to Company in all material respects at the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondencedates indicated therein and its results of operations, memoranda, books of account, Tax records cashflows and changes in financial position for the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofperiods set forth therein.
(c) ParentUpon Buyer’s request, Purchaser Sellers shall cause Company to perform a physical inventory of Inventory on a date prior to Closing determined by Buyer (in Buyer’s sole discretion) and Purchaser's Subsidiary permit Buyer and/or one or more of Buyer’s Representatives and its prospective sources of financing, through their respective Representatives to observe the taking of such physical inventory. Sellers shall cooperate with Seller, at Seller's expense, cause Company to provide as promptly as practicable after the completion of such physical inventory to Buyer a true and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities complete report of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense result of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliatessuch physical inventory.
(d) Each party agrees not to destroy any files or records which are subject Pending the Closing, all information and documents obtained by Buyer and its Representatives pursuant to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives Section 5.2 shall be subject to the terms and conditions of the Confidentiality Agreement, dated January 23, 2012, between Company and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with Buyer (the terms of the “Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Access; Confidentiality. (a) Between Except for competitively sensitive information and subject to legal and contractual restrictions, the date of this Agreement and the Closing, Seller Company shall (iand shall cause its Subsidiaries to) afford each of Parentto the Bidder's officers, Purchaseremployees, Purchaser's Subsidiary accountants, counsel and their other authorized representatives reasonable access during normal business hours upon reasonable notice, throughout the period prior to all offices and other facilities the earlier of the Business and Effective Time or the Termination Date, to all its properties, offices, employees, contracts, commitments, books and records relating and any report, schedule or other document filed or received by it pursuant to the Business requirements of federal or state securities laws and shall (and shall cause each of its Subsidiaries to) furnish to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make Bidder such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such additional financial and operating data and other information concerning as to its and its Subsidiaries' respective businesses and properties as the Business as they Bidder may from time to time reasonably request. Each party The Bidder will direct make all reasonable best efforts to minimize any disruption to the businesses of the Company and the Company's Subsidiaries which may result from the requests for access, data and information hereunder. The Bidder shall afford to the Company's officers, employees, accountants, counsel and other authorized representatives reasonable access during normal business hours upon reasonable notice, to its employees officers, employees, and books and records to render the extent reasonably necessary in connection with the preparation of the Proxy Statement. No investigation pursuant to this Section 4.3 shall affect any assistance which the other party may reasonably request in examining representation or utilizing records referred to warranty in this Section 6.2Agreement of any party hereto or any condition to the obligations of the parties hereto. All requests for access and information shall be coordinated through designated senior executives of each of the parties.
(b) On and after the Closing, during normal business hours, Seller The Bidder will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of hold all books and records of Seller relating information provided under this Section 4.3 that is non-public in confidence to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondenceextent required by, memorandaand in accordance with, books the provisions of accountthe letter dated February 27, Tax records 2000, between the Company and the like) and relating to events occurring prior to Bidder. Except as required by law, the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expenseCompany will hold, and make available will cause its officers, employees, accountants, counsel and other authorized representatives to Seller such documentshold, booksconfidential, records or all information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject documents obtained pursuant to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives Section 4.3 in accordance with the terms of letter dated July 1, 2000 between the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 Company and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithBidder.
Appears in 1 contract
Samples: Merger Agreement (Dexter Corp)
Access; Confidentiality. (a) Between Rexam PLC shall cause the date of this Agreement and Subject Companies prior to the Closing, Seller shall Closing to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give Purchaser and their its authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Business and to all books and records Subject Companies relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such copies and inspections and to make copies of such books and records thereof as they Purchaser may reasonably require request and (iii) cause the officers of the Subject Companies to furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning with respect to the Business and the properties of the Subject Companies as they Purchaser may from time to time reasonably request; provided that any such access shall be conducted at Purchaser's expense, at a reasonable time, under the observation of the Subject Companies' personnel and in such a manner as to maintain the confidentiality of this Agreement and the Transactions and not to interfere with the normal operation of the business of the Subject Companies or the Business. Each Notwithstanding anything contained in this Agreement or any other agreement between Purchaser and any Selling Party executed prior to the date hereof, neither Rexam PLC, the Subject Companies, nor any Affiliate of Rexam PLC shall have any obligation to make available to Purchaser or its representatives, or provide Purchaser or its representatives with, any consolidated, combined or unitary Tax Return filed by Rexam PLC or any of its Affiliates or their respective predecessors, or any related material (provided, that all information used in such Unitary Tax Return that pertains solely to the Subject Companies shall be provided to the Purchaser). Nothing herein shall require any Selling Party to disclose any information to Purchaser if such disclosure would contravene any applicable laws, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which a Selling Party or any Affiliate of a Selling Party is a party will direct its but excluding any legal restriction arising solely from the lack of written consent from employees to render any assistance which Purchaser's review of their personnel data outside the other party may reasonably request in examining or utilizing records referred to in this Section 6.2European Union).
(b) On The provisions of the Confidentiality Agreement shall remain binding and after in full force and effect. The information contained herein, in the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not schedules hereto or delivered to Purchaser or Purchaser's Subsidiary its authorized representatives pursuant hereto shall be deemed to be Confidential Information (including correspondenceas defined and subject to the exceptions contained in the Confidentiality Agreement) until the Closing. Except as otherwise provided in Section 5.4, memorandaPurchaser shall cause its consultants, books advisors and representatives to treat the terms of account, Tax records and the like) and relating to events occurring prior to this Agreement after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, based upon the advice of legal counsel, by other requirements of law and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be then still subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms provisions of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required permitted by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithlaw).
Appears in 1 contract
Samples: Purchase Agreement (Fibermark Inc)
Access; Confidentiality. (a) Between Subject to applicable Law and Governmental Orders, Seller shall, and shall cause the Company and each of its Subsidiaries to, during the period from and after the date of this Agreement and hereof until the Closing, Seller shall upon reasonable advance notice, (i) afford each Purchaser and its authorized directors, officers, employees, accountants, counsel, investment bankers and consultants (collectively, “Representatives”) reasonable access, during normal business hours, in the presence of at least one (1) Representative of Parent, Purchaserto the employees, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all properties, books and records relating (with respect to income Tax records, only to the Business and extent directly related to the employees Company or any of its Subsidiaries), Contracts and personnel other documents of the BusinessCompany or any of its Subsidiaries, (ii) permit each of Parent, furnish to Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondenceCompany and its Subsidiaries and, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof extent the Company has such data or other information, the Company Joint Ventures, as Purchaser may reasonably request, and (iii) instruct the appropriate Company Employees to transactions or events occurring prior to the date hereof.
(c) Parent, cooperate reasonably with Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing its Representatives in connection with the foregoing; provided, however, that, in each case, such access, furnishing of information and cooperation shall not (w) unreasonably disrupt the Company’s and its Subsidiaries’ operations, (x) require the Company or any tax determination or contractual obligations of its Subsidiaries to third parties permit any inspection or to defend disclose any information that in the reasonable judgment of the Company or prepare for any of its Subsidiaries, as applicable, would result in the defense disclosure of any claim against Seller trade secrets or violate any of its obligations or policies with respect to prosecute confidentiality, (y) require the Company or prepare for the prosecution any of claims against third parties by Seller relating its Subsidiaries to the conduct disclose any privileged information of the business Company or any of the Business by Seller prior to the Closing its Subsidiaries or in connection with any governmental investigation of (z) require Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Affiliates (including the Company and its designated engineers or consultantsSubsidiaries) may at to disclose any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession proprietary information of or reasonably available to Seller regarding Parent or any Business Subsidiary its Affiliates (excluding the Company or any of their engineers, consultants or agents and all other its Subsidiaries). All requests for information relating made pursuant to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fthis Section 5.3(a) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject directed to the General Counsel of Parent or such other Persons designated by Seller in writing. All such information shall be governed by the terms of the Confidentiality Agreement. Purchaser shall not, and shall cause its Representatives not to, use any information obtained pursuant to this Section 5.3(a) (as well as any other information provided to Purchaser or any of its Representatives by or on behalf of Parent, Seller, the Company or the Company’s Subsidiaries prior to the date hereof) for any purpose unrelated to this Agreement and the transactions contemplated hereby. To the extent that Seller or any of its Affiliates incurs any incremental out-of-pocket costs in processing, retrieving or transmitting any such information pursuant to this Section 5.3(a), Purchaser shall be held reimburse Seller and such Affiliate for the reasonable out-of-pocket costs thereof (including attorneys’ fees, but excluding reimbursement for general overhead, salaries and employee benefits) promptly upon submission to Purchaser of an invoice therefor accompanied by Parent, Purchaser, Purchaser's Subsidiary reasonable supporting documentation.
(b) From and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following after the Closing, this Section 6.2 Purchaser shall and the Confidentiality Agreement shall not prohibit Parentcause its Representatives to, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parentupon reasonable notice, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of furnish to Seller and its Representatives such financial, tax and operating data and other information which currently is known generally relating to the public Company and its Subsidiaries (including the Company Books and Records and information in connection with the filing of Tax Returns in respect of the Tax Package or which subsequently has come into the public domainother required regulatory or other filings, other than responses or reports and information relating to any Action or as required by way of disclosure in violation of this Agreement, any Law or Governmental Order) and (ii) make available to Seller and its Representatives the use or disclosure directors, officers and employees of the Company and its Subsidiaries as Seller may reasonably request to cooperate with Seller in connection with the foregoing. After the Closing, Purchaser shall cause the Company and its Subsidiaries to preserve such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or and the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting Company Books and Records for at least the disclosure later of such information, or ten (iii10) years after the disclosure of such information required by law or court order, provided that, to Closing Date and the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice expiration of the nature applicable statute of limitations with respect to Taxes for items included in the law or order requiring disclosure Company Books and the disclosure to be made in accordance therewithRecords.
Appears in 1 contract
Access; Confidentiality. (a) Between Upon reasonable advance written notice, and subject to applicable logistical restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shall afford Parent’s representatives reasonable access, during normal business hours between the date of this Agreement and the Closingearlier of the Effective Time and the date of termination of this Agreement, Seller to the Acquired Companies’ books and records and, during such period, the Company shall furnish promptly to Parent all readily available information concerning its business and shall make available its Representatives as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information to the extent: (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives such disclosure in the reasonable access to all offices and other facilities judgment of the Business and to all books and records relating to Company could: (a) result in the Business and to the employees and personnel disclosure of any trade secrets of Third Parties; (b) violate any obligation of the BusinessAcquired Companies with respect to confidentiality, non-disclosure or privacy; (c) jeopardize protections afforded to any of the Acquired Companies under the attorney-client privilege or the attorney work product doctrine; (d) violate any Law; or (e) materially interfere with the conduct of the Acquired Companies’ business; or (ii) permit each such information is included in the minutes of Parentthe meetings of the Board of Directors or its committees and relates to the discussion by the Board of Directors or any applicable committee of the Transactions or any similar transaction between the Company and any other Person (including any presentations or other materials prepared by or for the Board of Directors, Purchaser whether in connection with a specific meeting, or otherwise relating to such subject matter); and Purchaser's Subsidiary provided further that the Acquired Companies shall use reasonable best efforts to make appropriate substitute disclosure arrangements under circumstances in which such inspections restrictions apply. Any such access shall be afforded and any such information shall be furnished solely at Parent’s expense. No investigation pursuant to make copies this Section 6.4(a) shall affect any representation or warranty in this Agreement of such books any party hereto. All requests for access pursuant to this Section 6.4(a) must be directed to the Chief Financial Officer or the Chief Legal Officer of the Company or another person designated in writing by the Company. Notwithstanding anything herein to the contrary, Parent and records as they may reasonably require Merger Sub shall not, and (iii) furnish each shall cause their respective representatives not to, contact any partner, licensor, licensee, customer or supplier of Parentthe Company in connection with the Offer, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render Merger or any assistance which of the other party may reasonably request in examining Transactions without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or utilizing records referred to in this Section 6.2delayed), and Parent and Merger Sub acknowledge and agree that any such contact shall be arranged by and with a representative of the Company participating.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records Parent and the like) Company hereby acknowledge and relating agree to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause continue to be delivered to it bound by the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including Confidentiality Agreement in accordance with its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatterms. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared All information provided by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair Acquired Companies pursuant to this Agreement or replace Assets that are damaged or destroyed, other than ordinary wear obtained by Parent and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fits representatives pursuant to Section 6.4(a) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to treated as confidential information of the terms Acquired Companies for purposes of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between Subject to the date protections of this Agreement the Confidentiality Agreement, Sellers shall, and the Closingshall cause Company to, Seller shall (i) afford each provide Buyer, its authorized Representatives and its prospective sources of Parentfinancing, Purchaserthrough their respective Representatives, Purchaser's Subsidiary and their authorized representatives reasonable access during regular business hours and upon reasonable notice to all offices and other facilities of the Business and to all assets, properties, contracts, commitments, books and records relating to of Company for the Business and to the employees and personnel purpose of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make making such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information investigations concerning the Business affairs of Company as they Buyer may desire, and Sellers will furnish Buyer such information as Buyer may from time to time reasonably requestrequest for such purpose. Each party Sellers shall cause the officers and employees of Company to assist Buyer in making any such investigation and will direct its cause the counsel, accountants, consultants and other non-employee Representatives of Company to be reasonably available to Buyer for such purposes. Without limitation of the foregoing, Sellers will cause Company to (i) permit interviews of Company’s key employees, including each of the employees listed on Schedule K (the “Key Employees”), and such other employees as Company reasonably requests and (ii) permit Buyer to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2conduct an on-site due diligence investigation of each of Company’s Facilities.
(b) On and Within seven (7) business days after the Closingend of each calendar month ending during the period from the date hereof through the Closing Date, during normal business hoursSellers shall or shall cause Company to furnish to Buyer an unaudited monthly balance sheet of Company as of the end of the month then ended and related statements of income, Seller will permit each changes in member’s capital and cash flows for such month and for the period from January 1, 2012 through the end of Parentsuch month (the “Interim Financials”). Each of the Interim Financials (A) shall be prepared in accordance with GAAP, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all (B) shall be consistent with Company’s books and records and (C) shall fairly and accurately presents the financial position of Seller relating to Company in all material respects at the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondencedates indicated therein and its results of operations, memoranda, books of account, Tax records cashflows and changes in financial position for the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofperiods set forth therein.
(c) ParentUpon Buyer’s request, Purchaser Sellers shall cause Company to perform a physical inventory of Inventory on a date prior to Closing determined by Buyer (in Buyer’s sole discretion) and Purchaser's Subsidiary permit Buyer and/or one or more of Buyer’s Representatives and its prospective sources of financing, through their respective Representatives to observe the taking of such physical inventory. Seller shall cooperate with Seller, at Seller's expense, cause Company to provide as promptly as practicable after the completion of such physical inventory to Buyer a true and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities complete report of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense result of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliatessuch physical inventory.
(d) Each party agrees not to destroy any files or records which are subject Pending the Closing, all information and documents obtained by Buyer and its Representatives pursuant to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives Section 5.2 shall be subject to the terms and conditions of the Confidentiality Agreement, dated January 23, 2012, between Company and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with Buyer (the terms of the “Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Access; Confidentiality. (a) Between From the date of this Agreement and until the Stock Purchase Closing, Seller the Company shall, and shall cause the Company's Subsidiaries to, (i) afford each of give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives reasonable access at all reasonable times during normal business hours to all the agreements, contracts, books, records, analyses, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Business Company and to all books its Subsidiaries and records relating to the Business their accountants, and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties of the Company and its Subsidiaries as they Parent may from time to time reasonably request in writing and use reasonable best efforts to make available at all reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's and its Subsidiaries' business, properties, prospects and personnel as Parent may reasonably request. Each party will direct of Parent, Merger Sub, the Company and Majority Shareholder shall hold, and shall cause its employees Representatives to render any assistance which hold non-public information confidential and in accordance with the other party may reasonably request in examining or utilizing records referred to in this Section 6.2terms of the Confidentiality Agreements.
(b) On and As soon as practicable after the Closingexecution of this Agreement, during the Company shall permit Parent to electronically link the Company's financial reporting system to Parent's financial reporting system ("Hyperion"). Access to Hyperion will be provided by Parent's financial reporting staff and the tasks necessary to complete the link to Hyperion will be led by Parent's accounting staff, with the necessary assistance from the Company's accounting staff and other technical staff, if necessary, at no cost to the Company and provided that neither such installment nor the operation or use by Parent of Hyperion shall interfere with or disrupt the normal operation of the Company's business hoursor its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Hyperion software to be installed on a computer in the Company's accounting department; provided, Seller however, that the information retrieved from the Company's financial reporting system will permit each not be made available to persons who are directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent; provided, Purchaserfurther, Purchaser's Subsidiary however, that Parent shall not use such information other than for purposes of assessing the financial condition of the Company for purposes of the Transactions, and their authorized representativesshall not share, provide or sell the information to have access to and examine and make copies any third party or use the information in any manner that could reasonably be considered a restraint on competition or result in a violation of all books and records of Seller relating any applicable Laws. Any information provided under this Section 7.5(b) shall be subject to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books terms of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofConfidentiality Agreement.
(ci) ParentUp to and including the Stock Purchase Closing Date, Purchaser and Purchaser's Subsidiary shall cooperate with SellerParent or its employees, at Seller's expenserepresentatives, and make available to Seller such documentsengineers, books, records consultants or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller agents may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) Property and Club Real Property listed on Exhibit 7.5 in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem Parent deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereatproperty. Such investigation The Investigation may include, but need not be limited to, include the performance of soil and surface or ground water sampling, monitoring, borings borings, or testing testing, Phase II environmental site assessment of such property and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental ConcernConcern (together, the "Environmental Investigation") relating to the Real Property and Club Property. Seller shall, and The Company shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent in conducting any such investigationEnvironmental Investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent full access to their properties such Real Property and businessesClub Real Property, together with full permission to conduct any such investigationEnvironmental Investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives Parent all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf ofof the Company or its predecessors or Majority Shareholder, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of such Real Property and Club Property that is in the Business. Purchaser shall restoreCompany's or Majority Shareholder's possession or control, repair or replace Assets that are damaged is reasonably available to the Company or destroyedMajority Shareholder or any of its employees, other than ordinary wear and tearrepresentatives, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage engineers, consultants or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesagents.
(fc) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject No investigation pursuant to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and 7.5 shall affect any representation or warranty made by the Confidentiality Agreement shall not prohibit Parent, Purchaser parties hereunder or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets any indemnification obligation contained in Articles VIII or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithIX hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Trendwest Resorts Inc)
Access; Confidentiality. (a) Between Subject to applicable Law and Governmental Orders, Seller shall, and shall cause each of the Acquired Companies to, during the period from and after the date of this Agreement and hereof until the Closing, Seller shall upon reasonable advance notice, (i) afford each Purchaser and its authorized directors, officers, employees, accountants, counsel, financing sources and lenders, investment bankers and consultants (collectively, “Representatives”) reasonable access, during normal business hours, in the presence of Parentat least one (1) Representative of Seller, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all officers, employees, properties, books and records relating (with respect to U.S. Tax books and records, only to the Business extent solely and directly related to the employees Acquired Companies), Contracts and personnel other documents of the BusinessAcquired Companies, (ii) permit each of Parent, furnish to Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning relating to the Business Acquired Companies as they Purchaser may reasonably request (including such accounting and auditing information as may be necessary to prepare financial statements), and (iii) instruct the appropriate Acquired Company employees to cooperate reasonably with Purchaser and its Representatives in connection with the foregoing; provided, however, that, in each case, such access, furnishing of information and cooperation shall not (w) unreasonably disrupt any Acquired Company’s operations, (x) require any Acquired Company to permit any inspection or to disclose any information that, in the reasonable judgment of such Acquired Company, would result in the disclosure of any trade secrets or violate any of its obligations to third parties with respect to confidentiality (so long as the Seller notifies Purchaser of such confidentiality requirement and used its commercially reasonable efforts to obtain a waiver thereof or agree to alternative means of disclosure), (y) require any Acquired Company to disclose any attorney-client privileged information of any Acquired Company (so long as the Seller has used commercially reasonable efforts to agree to alternative means of disclosure), or (z) include any sampling of environmental media or building materials or (z) require Seller or any of its Affiliates (including the Acquired Companies) to disclose any proprietary information of or regarding Seller or its Affiliates (excluding the Acquired Companies). All requests for information made pursuant to this Section 5.4(a) shall be directed to such Persons designated by Seller in writing from time to time reasonably requesttime. Each party will direct All such information shall be governed by the terms of the Confidentiality Agreement. Purchaser shall not, and shall cause its employees Representatives not to, use any information obtained pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
5.4(a) (b) On and after the Closing, during normal business hours, Seller will permit each as well as any other confidential information provided to Purchaser or any of its Representatives by or on behalf of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring any Acquired Company prior to the date hereof) for any purpose unrelated to the transactions contemplated by this Agreement. . 38
(b) Purchaser shall indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all Liabilities, Losses, costs or expenses incurred by Seller, its Affiliates or their respective Representatives arising out of the access rights under this Section 5.4, including any claims by any of Purchaser’s Representatives for any injuries or property damage while present on the Real Property.
(c) ParentNotwithstanding anything to the contrary in this Section 5.4, Purchaser and Purchaser's Subsidiary neither Seller nor the Acquired Companies shall cooperate with Seller, at Seller's expense, and make available be obligated to Seller such documents, books, records or information transferred disclose to Purchaser or Purchaser's Subsidiary and relating any information (x) the disclosure of which could reasonably be expected to activities (i) violate any applicable Law, (ii) result in the loss of the Business or Seller prior attorney-client privilege with respect to the Closing such information (so long as Seller may reasonably require after the Closing has used commercially reasonable efforts to consider alternative means of disclosure), or (iii) result in connection with any tax determination or contractual obligations a breach of an agreement to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of which Seller or any Acquired Company or any of their respective Affiliates is a party (so long as Seller notifies Purchaser of such confidentiality requirement and used its Affiliates.commercially reasonable efforts to obtain a waiver thereof and to agree to alternative means of disclosure), or (y) that constitutes any trade secret or confidential information of third parties (so long as Seller notifies Purchaser of the confidentiality of such information and used its commercially reasonable efforts to obtain a waiver thereof or agree to alternative means of disclosure)
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to From and for a period of two (2) years after the otherClosing, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business its Affiliates and any Business Subsidiary its or their respective Representatives to, cooperate with each of Parenthold in confidence any and all information concerning Purchaser and the Acquired Companies, Purchaser, Purchaser's Subsidiary and their authorized representatives respective Affiliates, except to the extent that such information (i) has come within the public domain through no action or omission of the Seller or its Affiliates or Representatives in conducting violation of clause (iii) hereof; (ii) is later acquired by Seller or its Affiliates after the Closing from another source if the receiving Person is not aware that such investigationsource is under an obligation to Purchaser or the Acquired Companies or their respective Affiliates to keep such documents and information confidential or (iii) is disclosed in connection with Parent’s reporting obligations under the Securities Act of 1933, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf ofas amended, or in the possession Securities Exchange Act of or reasonably available to 1934, as amended. If Seller or any Business Subsidiary of its Affiliates or their respective Representatives are compelled to disclose any information subject to such confidentiality obligations by Law or Governmental Order or in an Action, Seller shall, to the extent legally permissible, give Purchaser prompt notice of such disclosure to permit Purchaser to seek a protective order should it so determine. At any time that such protective order or remedy has not been obtained, Seller or such Affiliate or Representative may disclose only that portion of such information which such Person is legally required to disclose or of which disclosure is required to avoid sanction for contempt or any similar sanction, and Seller shall exercise its commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such information so disclosed.
(e) For a period of twelve (12) months after the Closing Date, Seller shall not and shall cause its Affiliates not to, directly or indirectly, employ, engage, hire, recruit or solicit . 39 for employment, recruitment, engagement or hire (whether as an employee, consultant or otherwise) any Continuing Employee; provided that, Seller shall not be precluded from employing, soliciting, recruiting or hiring any such Continuing Employee (i) who has been terminated by the Company or any of their engineersits Affiliates at least six (6) months prior to the commencement of employment or hiring discussion with such Continuing Employee, consultants or agents (ii) who responds to a general or public solicitation not targeted at Continuing Employees. Notwithstanding the foregoing, Seller and all other information relating to environmental matters its Affiliates shall not be restricted from engaging in respect of the Business. Purchaser shall restore, repair general or replace Assets that are damaged public solicitations or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all advertising not targeted at any such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesContinuing Employees.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, From and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following after the Closing, this Section 6.2 Purchaser and the Confidentiality Agreement Seller shall, and shall not prohibit Parentcause their respective Representatives, Purchaser or Purchaser's Subsidiary from using and providing upon reasonable notice, to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of furnish to each other, and their respective Representatives, such financial and operating data and other information which currently is known generally relating to the public Acquired Companies (including books and records of the Acquired Companies) as is reasonably necessary for planning any systems conversions, process changes, litigation, employee benefits, environmental, financial reporting and accounting matters, or which subsequently has come into the public domainpreparation and filing of any required regulatory or other filings, other than responses or reports and information relating to any Action or as required by way of disclosure any Law or Governmental Order, and (ii) make available to each other, and their respective Representatives, their respective directors, officers and employees as may reasonably be requested to cooperate in violation of connection with the foregoing; provided that such access shall not unreasonably interrupt Seller’s or the Acquired Companies’ businesses; provided, further, that with respect to any claim under this Agreement, (ii) disclosure shall be governed by applicable rules of evidence. After the use or disclosure of Closing, Purchaser shall cause the Acquired Companies to preserve such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure books and records for at least eight (8) years after the Closing Date. This Section 5.4(f) does not relate to be made in accordance therewithTax matters, which are instead the subject of Section 5.13.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable full and complete access to Seller’s employees and during normal working hours to all books, records, offices and other facilities of the Business Seller and to all books and records relating to the Business and to the employees and personnel of the Businesseach Seller Subsidiary, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall conduct all such inspections under the supervision of personnel of Seller in a manner that will direct its employees minimize disruptions to render the business and operations of Seller and the Seller Subsidiaries and in a manner as to maintain the confidentiality of this Agreement. Nothing herein shall require Purchaser or Seller to disclose any assistance which information to the other party if such disclosure would: (a) cause significant competitive harm to it or its Affiliates or their respective competitive positions if the Transactions are not consummated; (b) jeopardize any attorney-client or other legal privilege; or (c) contravene any Applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which it or its Affiliates is a party); provided, however, that if Purchaser or Seller, as the case may reasonably request in examining be, relies on this sentence of Section 6.2(a) as a basis for such non-disclosure, Purchaser or utilizing records referred to in this Section 6.2Seller, as the case may be, shall nevertheless inform the other the general nature of the information not being disclosed and the basis for such non-disclosure.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may upon reasonable notice and at any time enter into and upon all or any portion of Seller’s properties included in the Business' or any Business Subsidiary's properties Assets (including all Leased Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem deems necessary or appropriate in their its sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary Seller Subsidiaries to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Seller Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear their properties and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesbusinesses.
(fc) Any The provisions of the Confidentiality Agreement shall remain binding and in full force and effect until the Closing. Notwithstanding anything to the contrary contained herein or in the Confidentiality Agreement, the Confidentiality Obligations as they relate to the transactions contemplated by this Agreement shall not apply to the purported or claimed Federal income tax treatment of the transactions (the “Tax Treatment”) or to any fact that may be relevant to understanding the purported or claimed Federal income tax treatment of the transactions (the “Tax Structure”), and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the Tax Treatment and Tax Structure of the transactions contemplated by this Agreement and any materials of any kind (including any tax opinions or other tax analyses) that relate to the Tax Treatment or Tax Structure. In addition, each party hereto acknowledges that it has no proprietary or exclusive rights to any tax matter or tax idea related to the transactions contemplated by this Agreement. The preceding sentence is intended to ensure that the transactions contemplated by this Agreement shall not be treated as having been offered under conditions of confidentiality for purposes of the Confidentiality Regulations and shall be construed in a manner consistent with such purpose. The information regarding contained herein, in the Business Disclosure Schedule or Assets heretofore or hereafter obtained from Seller delivered to Purchaser or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Information (as defined and subject to the Confidentiality Agreementexceptions contained therein) until the Closing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and are incorporated herein by reference. All obligations of Purchaser under the Confidentiality Agreement shall terminate simultaneously with the Closing. Except as otherwise provided herein, Seller shall, and shall cause each Seller Subsidiary and their consultants, advisors and representatives to, treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning Seller and each Seller Subsidiary, and Seller shall not, and shall cause each Seller Subsidiary and their consultants, advisors and representatives not prohibit Parentto use such information to the detriment of Seller, Purchaser any Seller Subsidiary or Purchaser's Subsidiary from using , and providing Purchaser shall, and shall cause its consultants, advisors and representatives to, treat after the date hereof as strictly confidential (unless compelled to third parties disclose by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning Purchaser, and Purchaser shall not, and shall cause each its consultants, advisors and representatives not to use such information concerning to the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser detriment of Seller or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller Mentmore shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary IM and their its authorized representatives reasonable access to all employees, offices and other facilities of Abbey (as relates to the Business ARM Assets), and Britannia and BDM and their respective Subsidiaries, and to all books and records relating of Abbey (as relates to the Business ARM Assets), and to the employees Britannia and personnel of the BusinessBDM and their respective Subsidiaries, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary IM to make such inspections and and, at IM's expense, to make copies of such books and records as they it may reasonably require require, and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary IM with such financial and operating data and other information concerning relating to Abbey (as relates to the Business ARM Assets), and Britannia and BDM and their respective Subsidiaries, as they IM may from time to time reasonably request. Each party IM and its authorized representatives shall conduct all such inspections during normal business hours and in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2business and operations of Britannia, Abbey and BDM and their respective Subsidiaries.
(b) On Between the date of this Agreement and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary IM shall (i) afford Mentmore and their its authorized representatives, to have representatives reasonable access to all employees, offices and examine other facilities of Arcus and make copies of to all books and records of Seller Arcus, (ii) permit Mentmore to make such inspections and to make copies, at Mentmore's expense, of such books and records as it may reasonably require, and (iii) furnish Mentmore with such financial and operating data and other information relating to the Business which are not delivered Arcus as Mentmore may from time to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records time reasonably request. Mentmore and the like) its authorized representatives shall conduct all such inspections during normal business hours and relating to events occurring prior in a manner that will minimize disruptions to the date hereof business and to transactions or events occurring prior to the date hereofoperations of Arcus.
(c) Parent, Purchaser Mentmore shall procure that IM and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time may, on prior notice, enter into and upon all or any portion of the Business' properties of Abbey (as relates to the ARM Assets), and Britannia and BDM or any Business Subsidiary's properties of their respective Subsidiaries, (including all Real PropertyProperty and all real estate which is the subject of a Lease) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem IM deems necessary or appropriate in their sole and absolute discretionappropriate, the environmental condition of such properties or the business conducted thereat. Such ; provided, however, that such investigation may include, but need not be limited to, include the performance of soil and surface or ground water sampling, monitoring, borings or testing testing. Mentmore shall procure that Abbey (as relates to the ARM Assets) and any other testsBritannia and BDM and their respective Subsidiaries, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary IM and their its authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary IM and their its authorized representatives full reasonable access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary IM and their its authorized representatives all plans, reports, any environmental investigation results, reports or assessments previously or contemporane ously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Mentmore, Abbey (as relates to the ARM Assets), and Britannia and BDM and their respective Subsidiaries, or any of their engineers, consultants or agents, and all information relating to environmental matters in respect of their properties and businesses.
(d) IM shall procure that Mentmore and its authorized representatives (including its designated engineers or consultants) may, on prior notice, enter into and upon all or any portion of the properties of Arcus (including all Real Property and all real estate which is the subject of a Lease) in order to investigate and assess, as Mentmore deems necessary or appropriate, the environmental condition of such properties or the business conducted thereat; provided, however, that such investigation may not include the performance of soil or and surface or ground water tests sampling, monitoring, borings or testing. IM shall procure that Arcus shall cooperate with Mentmore and its authorized representatives in conducting such investigation, shall allow Mentmore and its authorized representatives reasonable access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Mentmore and its authorized representatives all plans, reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller IM or any Business Subsidiary Arcus, or any of their engineers, consultants or agents agents, and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear their properties and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesbusinesses.
(fe) Any The provisions of the Confidentiality Agreement shall remain binding and in full force and effect until the Closing. The information regarding contained herein, in the Business Mentmore Disclosure Letter , the IM Disclosure Schedule or Assets heretofore delivered to IM or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary Mentmore or their authorized representatives pursuant hereto shall be subject to the terms of Confidentiality Agreement as Confidential Information (as defined therein) until the Confidentiality AgreementClosing and, for that purpose and such information shall be held by Parentto that extent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and are incorporated herein by reference. All obligations under the Confidentiality Agreement shall not prohibit Parentterminate simultaneously with the Closing. Except as otherwise provided herein, Purchaser IM and Mentmore shall, and Mentmore shall procure that Britannia, Abbey and BDM shall, and shall cause their respective Subsidiaries and their respective consultants, advisors and representatives to, after the date hereof, treat as strictly confidential (unless compelled to disclose by judicial or Purchaser's Subsidiary from using administrative process or, in the opinion of legal counsel, by other requirements of law, including, without limitation the requirements of the London Stock Exchange or any other national securities exchange) the terms of this Agreement and providing to third parties such all nonpublic, confidential or proprietary information concerning any of them, provided to them pursuant to the Assets negotiation of this Agreement or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Strategic Alliance Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. Subject to the Confidentiality Agreement and applicable Law relating to the sharing of information, the Company agrees to and shall cause its Subsidiaries to provide Parent, Carve-out Buyer and their respective Representatives (aincluding the Financing Sources), from time to time prior to the earlier of the Effective Time or the termination of this Agreement, reasonable access (which, in the case of unaffiliated third party Representatives, shall require the use of reasonable best efforts to provide such access) Between during normal business hours to (i) the date Company’s and its Subsidiaries’ senior executives, independent auditors, officers, employees, Representatives, properties, commitments, Contracts, books and records, (ii) such other information as Parent or Carve-out Buyer shall reasonably request, in each case, to the extent reasonably required to consummate the Transactions (provided, that Parent, Carve-out Buyer and their respective Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company, and no access shall be granted to conduct any environmental or intrusive sampling or testing without the Company’s prior written consent in its sole discretion), and (iii) such other information as Parent may reasonably request relating to the repositioning process with the works council in Germany. The foregoing notwithstanding, the Company shall not be required to afford such access if the Company determines, in its reasonable best judgment (after consultation with outside counsel), it would cause a violation of an obligation of confidentiality pursuant to an agreement to which the Company or any of its Subsidiaries is a party so long as the Company shall have used reasonable best efforts to obtain the consent of such third party to such access, would cause a risk of a loss of attorney-client privilege to the Company or any of its Subsidiaries, or that is competitively sensitive information (provided that the Company will reasonably cooperate with Parent and/or Carve-out Buyer to provide such access, including by entering into a joint defense agreement or “clean team” or similar agreement, with Parent or Carve-out Buyer if requested with respect to any such information), would cause a risk of a loss of trade secret protection to the Company or its Subsidiaries or would constitute a violation of any applicable Law. Each of Parent, Carve-out Buyer and the Company hereby agrees that until the Effective Time, all information provided to it or any of its Representatives in connection with this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities consummation of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary Transactions shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause be deemed to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assessConfidential Information, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallterm is used in, and shall cause the Business and any Business Subsidiary tobe treated in accordance with, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Merger Agreement (Om Group Inc)
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to From the date hereof and to transactions or events occurring prior to until the date hereof.
(c) ParentEffective Time, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving upon reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, dated as of September 20, 2002, between Parent and such information the Company, as amended (the "Confidentiality Agreement"), the Company shall be held by (and shall cause each Company Subsidiary to), upon reasonable prior notice, afford the officers, employees, accountants, counsel, financing sources and other representatives of Parent and Merger Sub, reasonable access during normal business hours to all of its employees, properties, books, contracts, commitments and records (including but not limited to Tax Returns). Without limitation as to the foregoing, until the Effective Time, the Company shall (and shall cause each Company Subsidiary to) afford Parent, Purchaser, Purchaser's Subsidiary Merger Sub and their respective representatives such access to any site located on Real Property as may be requested by Parent or Merger Sub for the purpose of conducting Phase I and/or Phase II environmental assessments. Parent shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective officers, directors, employees and agents from and against any damage to persons or property occurring in accordance with the terms course of performing any such Phase I and/or Phase II environmental assessment and shall return the Real Property to the same condition as it was in prior to the commencement of the Confidentiality Agreement providedPhase I and/or Phase II environmental assessment. During the period from the date hereof until the Effective Time, howeverthe Company shall (and shall cause each of the Company Subsidiaries to) furnish promptly to Parent and Merger Sub (a) a copy of each report, that following schedule, registration statement and other document filed or received by it during such period pursuant to the Closingrequirements of federal securities laws or provided to or received from any security holders of the Company and (b) all other information concerning its business, this Section 6.2 properties and personnel as Parent or Merger Sub may reasonably request. All obligations of Parent and its representatives under the Confidentiality Agreement shall not prohibit Parentterminate at the Effective Time. Notwithstanding the foregoing, Purchaser the parties (and each employee, representative, or Purchaser's Subsidiary from using other agent of the parties) may disclose to any and providing all persons, without limitation of any kind, the U.S. federal income tax treatment and any facts that may be relevant to third parties such information concerning understanding the Assets or tax treatment of the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from transactions contemplated by this Agreement beginning on the earliest of (i) the use or disclosure date of such information which currently is known generally the public announcement of discussions relating to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreementtransaction, (ii) the use or disclosure date of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or public announcement of the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such informationtransaction, or (iii) the disclosure date of such the execution of this Agreement, provided, however, that no party (nor any employee, representative or other agent thereof) may disclose any other information required by law that is not relevant to understanding the tax treatment and tax structure of the transaction (including the identity of any party and any information that could lead another to determine the identity of any party), or court order, provided that, any other information to the extent practicable, prior to that such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice could reasonably result in a violation of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithany applicable securities law.
Appears in 1 contract
Access; Confidentiality. (a) Between During the date of this Agreement Pre-Closing Period, Omega and the ClosingDirect Sellers shall, Seller and shall (i) afford each cause the Target Companies to, subject to applicable Laws and upon reasonable advance notice, and at any Buyer Party’s reasonable request for purposes of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access to all offices and other facilities preparing for the Buyers’ operation of the Business and to all books and records relating to following the Business and to US/NL Closing and, if applicable, the employees and personnel of the BusinessJV Holdco Closing, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make afford such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the ClosingBuyer Party’s Representatives reasonable access, during normal business hours, Seller will permit each to the properties, books and records, contracts, personnel, accountants, business and operations of ParentOmega and its Subsidiaries, Purchaser, Purchaser's Subsidiary and their authorized representativesincluding the Target Companies, to have access to and examine and make copies of all books and records of Seller the extent relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondenceand separate from the properties, memorandaassets, books and records, documents and data relating solely to any other businesses of accountOmega or any of its Affiliates; provided that (i) such access shall not include any right to conduct environmental sampling or testing of any kind at any of the Target Real Property, Tax records (ii) all access and furnishing of information contemplated by this Section 4.7 shall be conducted at such Buyer Party’s sole expense, in compliance with Law and in such a manner as not to interfere unreasonably with the normal operations of Omega or the Target Companies and (iii) such access shall be coordinated through Omega personnel that may be designated by Omega from time to time (and, for the avoidance of doubt, no access shall be coordinated through any Person who is employed by any of the Target Companies). Omega shall have the right to have one or more of its Representatives present at all times during any visits, examinations, discussions or contacts contemplated by Section 4.7(a). During the Pre-Closing Period, Omega will promptly provide each Buyer Party with copies of all pleadings, filings or material correspondence filed, delivered or received by Omega or any of its Affiliates, and such other information as any Buyer Party may reasonably request, in connection with or in relation to the Specified Action; provided that, for the avoidance of doubt, any such copies, materials or information will be deemed “Confidential Information” under, and subject to the terms and conditions of, the Confidentiality Agreement.
(b) During the Pre-Closing Period, Parent shall, and shall cause its Subsidiaries to, subject to applicable Laws and any obligations of confidentiality by which Parent or any of its Subsidiaries are bound, and upon reasonable advance notice and at Omega’s reasonable request for purposes of preparing for ownership of the US/NL Equity Consideration Shares and the like) and relating to events occurring prior JV Holdco Equity Consideration Shares (as applicable), afford Omega’s Representatives reasonable access, during normal business hours, to the date hereof properties, books and records, contracts, personnel, accountants, business and operations of Parent and its Subsidiaries, taken as a whole; provided that (i) such access shall not include any right to transactions conduct environmental sampling or events occurring prior testing of any kind at any real property of Parent or its Subsidiaries, (ii) all access and furnishing of information contemplated by this Section 4.7 shall be conducted at Omega’s sole expense, in compliance with Law and in such a manner as not to interfere unreasonably with the date hereofnormal operations of Parent or its Subsidiaries and (iii) such access shall be coordinated through Parent personnel that may be designated by Parent from time to time. Parent shall have the right to have one or more of its Representatives present at all times during any examinations, discussions or contacts contemplated by Section 4.7(b).
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expenseFollowing the US/NL Closing, and make available for so long as the Omega Standstill Parties continue to Seller such documentsown US/NL Equity Consideration Shares, books, records JV Holdco Equity Consideration Shares and/or Offered Securities issued pursuant to the Participation Right or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities Parent Shares acquired in accordance with Section 4.25(a)(i) representing (in the aggregate) at least five percent (5%) of the Business or Seller prior then-issued and outstanding Parent Shares, Parent shall, subject to the Closing as Seller may reasonably require after the Closing in connection with applicable Laws and any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties confidentiality by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller which Parent or any of its AffiliatesSubsidiaries are bound, promptly deliver or cause the prompt delivery of all such information as may reasonably be required by Omega in order for Omega to disclose and report on its equity stake in Parent in its financial statements in accordance with applicable Laws. Omega shall reasonably request any such information in writing, and shall stipulate a date and time by which such information is required (affording Parent a reasonable period within which to gather and consolidate the required information), and Parent shall use commercially reasonable efforts to comply with such request within the stipulated timing.
(d) Each party agrees not All information exchanged pursuant to destroy any files Section 4.7(a) or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(eSection 4.7(b) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to governed by the terms of the Confidentiality Agreement, as amended by this Section 4.7(d). Parent and such information Omega hereby agree that (i) Recipient Representatives (as defined in the Confidentiality Agreement) shall be held deemed to include any Representative of any Buyer Party engaged by Parent, Purchaser, Purchaser's Subsidiary and their representatives such Buyer Party in accordance connection with the terms of Purpose (as defined in the Confidentiality Agreement Agreement), and (ii) Omega shall not be required to provide any access, or furnish any information, if doing so would (A) require disclosure of any material trade secrets (other than disclosure to the Target Companies), (B) jeopardize the attorney-client or other legal privilege or (C) conflict with or contravene any Law (including Laws relating to Personal Information) by which any of its or their assets or properties are bound; provided, however, that following in such instances Omega shall promptly inform the applicable Buyer Party of the general nature of the information being withheld and, upon such Buyer Party’s request, reasonably cooperate with such Buyer Party to provide such access or furnish such information, in whole or in part, in a manner that would not cause any competitive harm, jeopardize any such privilege or conflict with any such Law (including by providing information pursuant to a “clean team” arrangement). Parent and Omega agree that their respective obligations under the Confidentiality Agreement, as amended by this Section 4.7(d), shall continue and remain in effect until the last to occur of the US/NL Closing or JV Holdco Closing, upon which such obligations shall expire. In the event that this Agreement is terminated pursuant to the terms hereof prior to the US/NL Closing, the Confidentiality Agreement, as amended by this Section 6.2 4.7(d), shall remain in full force and effect in accordance with its terms, or, if later, for one (1) year from the date of such termination.
(e) Notwithstanding anything to the contrary contained herein or otherwise, from the date of this Agreement to the earlier of the US/NL Closing and the Confidentiality date on which this Agreement is terminated pursuant to Section 7.1, without the prior written consent of Omega, each Buyer Party shall not, and shall cause its Affiliates and its Representatives not prohibit Parentto, Purchaser contact any Person known by such Buyer Party and its Affiliates and Representatives to be a distributor, supplier, vendor or Purchaser's Subsidiary from using and providing to third parties such information concerning customer or partner of Omega or any of its Subsidiaries (including the Assets Target Companies) regarding the business, operations, assets, financial condition or prospects of the Target Companies or this Agreement or the Business Transactions; provided, however, that nothing in this Section 4.7(e) shall restrict any communications in the ordinary course of business that are unrelated to the Transactions or any general market diligence.
(f) Other than in connection with the Transactions or the performance of any obligations or the exercise of any rights or remedies under this Agreement, any of the other Transaction Documents, the Transition Services Agreement, the Shared Services Agreements or any other Contracts entered into with respect to the Overhead and Shared Services or Intellectual Property, until the five (5) year anniversary of the last to occur of the US/NL Closing or the JV Holdco Closing, Omega and the Direct Sellers shall not, and Omega and the Direct Sellers shall cause the Omega Companies and their and their respective Affiliates and Representatives not to, divulge or convey to any Person, or use, any Target Confidential Information; provided, however, that any of the Omega Companies and their respective Affiliates and Representatives may furnish such portion (and only such portion) of Target Confidential Information as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from such Person reasonably determines (after consultation with counsel) they are legally obligated to disclose if: (i) they receive a request to disclose all or any part of the use Target Confidential Information under the terms of a subpoena, civil investigative demand or disclosure order issued by or for the benefit of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, a Governmental Body; (ii) to the use extent permissible under applicable Law, the recipient notifies Parent of the existence, terms and circumstances surrounding such request and consults with Parent on the advisability of taking steps available under applicable Laws to resist or disclosure of narrow such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or request; (iii) the disclosure recipient discloses only that portion of the Target Confidential Information as it reasonably determines (after consultation with counsel) it is legally obligated to disclose; and (iv) if so requested by Xxxxxx, the recipient cooperates with Parent and otherwise exercises its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the Target Confidential Information required to be disclosed pursuant to a subpoena, civil investigative demand or order; provided, further, that the Omega Companies and their respective Affiliates and Representatives may disclose Target Confidential Information to one another (including to their respective Representatives) to the extent necessary for any legal, accounting, Tax or regulatory matters relating to any of the Omega Companies, and to any Tax Authority to the extent necessary for any Tax matters relating to any of the Omega Companies. Any cooperation or other exercise of efforts pursuant to the foregoing clause (iv) shall be undertaken at Parent’s sole cost and expense.
(g) From and after the last to occur of the US/NL Closing or the JV Holdco Closing until the five (5) year anniversary of the last to occur of the US/NL Closing or the JV Holdco Closing, each Buyer Party shall not, and shall cause its Affiliates (including the Target Companies) and its and their respective Representatives not to, divulge or convey to any Person, or use, any Omega Confidential Information; provided, however, that any such information Person may furnish such portion (and only such portion) of Omega Confidential Information as such Person reasonably determines (after consultation with counsel) they are legally obligated to disclose if: (i) they receive a request to disclose all or any part of the Omega Confidential Information under the terms of a subpoena, civil investigative demand or order issued by or for the benefit of a Governmental Body; (ii) to the extent permissible under applicable Law, the recipient notifies Omega of the existence, terms and circumstances surrounding such request and consults with Omega on the advisability of taking steps available under applicable Laws to resist or narrow such request; (iii) the recipient discloses only that portion of the Omega Confidential Information as it reasonably determines (after consultation with counsel) it is legally obligated to disclose; and (iv) if so requested by Omega, the recipient cooperates with Omega and otherwise exercises its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the Omega Confidential Information required to be disclosed pursuant to a subpoena, civil investigative demand or order. Any cooperation or other exercise of efforts pursuant to the foregoing clause (iv) shall be undertaken at Omega’s sole cost and expense.
(h) For a period after the later of the US/NL Closing Date and the JV Holdco Closing Date commensurate to the period of time that Parent preserves and retains its own corporate, accounting, legal, auditing, human resources and other books and records (in each case, as applicable, the “Retention Period”) (but in no event for a period of less than three (3) years after the later of the US/NL Closing Date and the JV Holdco Closing Date), Parent shall, and shall cause the Target Companies to, (i) preserve and retain all corporate, accounting, legal, auditing, human resources and other books and records of each Target Company relating to the conduct and operations of the Business prior to the later of the US/NL Closing Date and the JV Holdco Closing Date (including any documents relating to any governmental or non-governmental Actions, collectively the “Target Records”) and (ii) subject to the penultimate sentence of Section 5.3, afford to Omega and Omega’s accountants, counsel and other Representatives reasonable access to inspect and copy during regular business hours, upon reasonable advance notice, any such Target Records and reasonable access to the employees of the Target Companies who have prepared such Target Records (including for purposes of allowing Omega and its Affiliates to comply with audit requirements pursuant to applicable Law); provided (A) such Target Records shall only be requested by law Omega for legitimate business purposes, which shall exclude disputes between the parties arising under this Agreement (to which the rules of discovery shall apply) and (B) such access shall be conducted in such a manner as not to interfere unreasonably with the normal operations of the Buyer Parties or court orderthe Target Companies. The Buyer Parties and the Target Companies (or their respective successors and assigns) shall be entitled to destroy or dispose of the Target Records prior to the expiration of the applicable Retention Period only if the applicable Buyer Party is effecting such destruction in compliance with the Target Companies’ document retention policies in effect as of immediately prior to the later of the US/NL Closing Date and the JV Holdco Closing Date.
(i) At or promptly following the later of the US/NL Closing Date and the JV Holdco Closing Date, provided thatOmega shall assign to Parent, or cause to be assigned to Parent, its (or its applicable Affiliate’s) rights (other than rights with respect to standstill provisions) under any confidentiality agreements entered by Omega or its Affiliates with a third party in connection with the potential Transactions, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithconfidentiality agreements permit such assignment.
Appears in 1 contract
Access; Confidentiality. (a) Between From the date of this Agreement hereof until the Closing Date, each Selling Shareholder, severally and not jointly, shall cause the Closing, Seller shall Company to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access to all books, records, offices and other facilities of the Business Company, its Subsidiaries and (to the extent within the control of any of the Company, its Subsidiaries, or such Selling Shareholder or any of its Affiliates) the KSO Unit, to the Assets and to all books personnel and records relating to the Business and to the employees and personnel suppliers of each of the Business, Company and its Subsidiaries (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections (including making such reasonable investigations and assessments, as Purchaser deems necessary or appropriate in its sole and absolute discretion) of the condition of such properties or the business conducted there and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall use reasonable efforts to conduct all such inspections in a manner that will direct minimize disruptions to the business and operations of the Company, its employees Subsidiaries and the KSO Unit. Notwithstanding the foregoing, the Company shall not be required to render disclose to Purchaser any assistance information (i) the disclosure of which would prejudice AriaWest's claims and defenses in the other party may Arbitration Proceeding (as reasonably request in examining or utilizing records referred determined by the Selling Shareholders) and (ii) which would not be material to in this Section 6.2a purchaser of the Sale Shares but for the Arbitration Proceeding.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to From the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parentat all times thereafter, Purchaser and Purchaser's Subsidiary shall cooperate with Sellerexcept as otherwise provided herein, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities each of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, Selling Shareholders and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall (in the case of the Selling Shareholder severally and not jointly) use its reasonable efforts to cause the Business consultants, advisors and any Business Subsidiary representatives of the Company and its Subsidiaries to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to treat the terms of the Confidentiality AgreementTransaction Documents and all nonpublic, confidential or proprietary information concerning the Company, its Subsidiaries and the KSO Unit as strictly confidential (except to the extent such information shall is requested to be held disclosed by Parentjudicial or administrative process or, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms reasonable opinion of the Confidentiality Agreement provideddisclosing party, howeverby other requirements of law), provided that following (i) prior to the Closing, this Section 6.2 Purchaser may use and the Confidentiality Agreement shall not prohibit Parent, Purchaser or disclose such information in connection with Purchaser's Subsidiary from using evaluation of the Transactions, including evaluation of the acquisition of the Sale Shares, negotiation of the Transaction Documents, preparation and providing to third parties such information concerning the Assets circulation of any disclosure, notice or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or other materials in connection with Purchaser's Subsidiary from (i) the use or disclosure meeting of such information which currently is known generally to the public or which subsequently has come into the public domain, shareholders and obtaining any other than by way of disclosure in violation of this Agreement, required Consents and (ii) as and from the Closing Date Purchaser shall not be subject to any such limitation. Each of the Selling Shareholders shall (as and from the Closing Date), and shall (severally and not jointly) use its reasonable efforts to cause such Selling Shareholder's consultants, advisors and representatives to, refrain from using or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of disclosing such information, or except (iiiA) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure requested to be made disclosed by judicial or administrative process or by other requirements of law, (B) as required for internal reporting or archival purposes or (C) for use in accordance therewithany Proceeding.
Appears in 1 contract
Access; Confidentiality. (a) Between The Company will provide the Investor and its respective employees, accountants, counsel and other authorized representatives, during the period from the date of this Agreement and hereof until the Closing, Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives with reasonable access to all offices and other facilities of the Business and to all premises, employees, books and records relating to the Business and to the employees and personnel properties of the BusinessCompany and its Subsidiaries upon reasonable advance notice during normal business hours, (ii) permit each provided that such access does not interfere with the normal operations of Parentthe Company and its Subsidiaries. The Company will, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) will cause its Subsidiaries to, furnish each of Parent, Purchaser and Purchaser's Subsidiary the Investor with such financial financial, operational, regulatory and operating compliance data and other information concerning with respect to its respective businesses, assets, rights, properties liabilities and obligations as the Business as they Investor may from time to time reasonably request. Each party will direct Any information concerning the Company and its employees Subsidiaries obtained by the Investor or its respective representatives pursuant to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives 4.2 shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary the Investor and their its respective representatives in accordance with the terms of the Confidentiality Agreement Agreement.
(b) Notwithstanding the obligations contained in this Section 4.2, the Company and its Subsidiaries will not be required to provide access to or to disclose information where such access or disclosure would result in the loss of any attorney-client privileges or protections or contravene any Applicable Law or binding agreement in effect; provided, however, that following the Closing, this Section 6.2 parties hereto shall cooperate in seeking and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing use reasonable best efforts to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or find a way to allow disclosure of such information which currently is known generally in a manner that does not result in any of the foregoing consequences. Notwithstanding anything to the public or which subsequently has come into the public domain, other than by way of disclosure contrary contained in violation of this Agreement, neither the Investor’s review of any matters related to the transactions contemplated by this Agreement, including the review of the business or financial and other conditions of the Company and its Subsidiaries conducted by the officers, employees, accountants, counsel and other authorized representatives or agents of the Investor or its respective Affiliates, nor to the knowledge of the Investor with respect to any such matters, whether or not resulting from any such review, whether prior to or after the date hereof, shall affect (iia) the use representations and warranties made by the Company in or disclosure pursuant to this Agreement or (b) the remedies of the Investor for breaches of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure representations and the disclosure to be made in accordance therewithwarranties.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the ClosingAfter reasonable notice provided by Buyer, Seller shall (i) afford each of Parentgive, Purchaserand shall authorize and instruct its counsel, Purchaser's Subsidiary its accountants and their authorized its other agents and representatives reasonable access to all offices give to Buyer and Buyer’s counsel, accountants and other facilities of representatives full access during normal business hours to the Business Property and to all books of Seller’s books, contracts and records relating related to the Business Property, and to the employees shall furnish such information and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records materials related to the Property as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may Buyer from time to time reasonably may request. Each party will direct its employees to render any assistance which , provided, however that in no event shall (i) such inspections or tests materially disrupt or disturb the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities operation of the Business Property, or Seller prior to (ii) Buyer or its agents, representatives and consultants drill or bore on or through the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct surface of the business of Real Property or the Business by Seller Improvements without Seller’s prior to the Closing written consent, which consent may be given or withheld in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their Seller’s sole and absolute discretion. After making such tests and inspections, Buyer shall promptly restore the environmental Property to the condition that existed prior to making such tests and inspections (which obligation shall survive the Closing or any termination of this Agreement). In the event that the Agreement is terminated for any reason other than Seller’s default, Buyer shall promptly deliver to Seller copies of all written reports, studies and results of tests and investigations obtained or conducted by Buyer with respect to the Property (which obligation shall survive any termination of this Agreement) provided that Seller first reimburses Buyer for the cost of obtaining such properties reports, studies and results. All information so learned by Buyer shall be kept in confidence pending the Closing. If the Closing does not take place for any reason, Buyer shall keep such information in confidence thereafter (unless and until such information otherwise is or the business conducted thereat. Such investigation may include, but need not be limited to, the performance becomes public knowledge through no fault of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, Buyer) and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available promptly return to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted materials so provided by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement Seller; provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement foregoing shall not prohibit Parent, Purchaser or Purchaser's Subsidiary Buyer from using and providing to third parties utilizing such information concerning or materials in connection with the Assets exercise of its rights hereunder. Buyer shall indemnify, defend and hold harmless Seller from any damage or injury caused by Buyer’s or Buyer’s agents’ negligence or willful misconduct while reviewing Seller’s books and records at the Business as it may deem appropriateProperty. The foregoing provisions shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) survive the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation termination of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Sale and Leaseback Agreement (Specialty Laboratories Inc)
Access; Confidentiality. (a) Between the date of this Agreement and the ClosingEffective Time, Seller Holdings shall, and shall cause AXIA to (i) afford each give Acquisition, its lenders, underwriters, placement agents, potential equity investors who are not actual or potential competitors of Parent, Purchaser, Purchaser's Subsidiary the Company and their authorized respective counsel, accountants, engineers and other representatives reasonable full and complete access to all properties, personnel, facilities and offices of Holdings and other facilities of the Business Company and to all the books and records relating of Holdings and the Company (and permit Acquisition to the Business and to the employees and personnel of the Businessmake copies thereof), (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary Acquisition to make such inspections and to make copies of such books and records as they may reasonably require and thereof, (iii) cause its officers and employees to furnish each of Parent, Purchaser and Purchaser's Subsidiary Acquisition with such financial information and operating data and other information concerning with respect to the Business business and properties of Holdings and the Company, and to discuss with Acquisition and its authorized representatives the affairs of Holdings and the Company, all as they Acquisition may from time to time reasonably requestrequest for the purposes of this Agreement during normal business hours and with reasonable notice to Holdings and AXIA. Each party will direct Notwithstanding the foregoing, Holdings may impose reasonable restrictions on access to its employees facilities, personnel, trade secrets and other sensitive commercial information in order to render any assistance which minimize disruption to the other party may reasonably request in examining operations of the business of the Company or utilizing records referred to in this Section 6.2impairment of its proprietary rights.
(b) On Between the date of this Agreement and after the ClosingEffective Time, during normal business hoursAcquisition shall hold and shall cause its lenders, Seller will permit each of Parentunderwriters, Purchaserplacement agents, Purchaser's Subsidiary and their authorized potential equity investors, officers, directors, employees, representatives, consultants and advisors to have access hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its counsel, by other requirements of law, all documents and examine and make copies of all books and records of Seller relating information furnished to Acquisition by Holdings or the Business which are not delivered to Purchaser Company or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing their respective representatives in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating Merger, including but not limited to the conduct of the business of the Business by Seller prior information provided pursuant to the Closing Sections 6.4 and 6.6(a), and will not release or disclose such information to any other Person, except its lenders, underwriters, placement agents, potential equity investors, auditors, attorneys, financial advisors and other consultants, agents and advisors in connection with any governmental investigation the consummation of Seller the Merger. If the Closing does not occur (i) such confidence shall be maintained by Acquisition, and Acquisition shall cause such other Persons to maintain such confidence, except to the extent such information comes into the public domain through no fault of Acquisition or any Person to whom Acquisition released or disclosed such information and (ii) upon the request of its Affiliates.
(d) Each party agrees not Holdings, Acquisition shall promptly return to destroy Holdings any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to written materials it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties has received from Holdings or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface Company or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businessesrespective representatives, together with full permission to conduct such investigationall copies thereof. Notwithstanding the foregoing, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality AgreementAgreement from BHC to The Sterling Group, and such information Inc., accepted by The Sterling Group, Inc. on February 11, 1998 shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives continue in accordance with the its terms until consummation of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement Closing hereunder occurs (whereupon it shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithterminate).
Appears in 1 contract
Samples: Merger Agreement (Axia Inc)
Access; Confidentiality. (a) Between Except as required pursuant to any existing confidentiality agreement or obligation entered into prior to the date hereof by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice (excluding, for the avoidance of doubt, confidentiality agreements entered into in connection with any Acquisition Proposal), a summary of the material terms of which the Company shall provide Parent upon any request for information by Parent that is subject to such confidentiality agreement, and subject to applicable law or decree, from the date of this Agreement and until the Closing, Seller the Company shall, and shall cause the Company Subsidiaries to, (i) afford each of give Parent, Purchaserits officers and a reasonable number of its employees and its authorized representatives, Purchaser's Subsidiary and their authorized representatives upon reasonable prior notice to the Company, reasonable access during normal business hours to all the Company Agreements, books, records, analysis, projections, plans, personnel, offices and other facilities and properties of the Business Company and the Company Subsidiaries and, subject to all books customary reasonable request, their accountants and records relating to the Business accountants’ work papers and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary Parent on a timely basis with such financial and operating data and other information concerning with respect to the Business business and properties and Company Agreements of the Company and the Company Subsidiaries as they Parent may from time to time reasonably request. Each party will direct its employees request and use commercial best efforts to render any assistance which make available at reasonable times during normal business hours to the officers, employees, accountants, counsel, financing sources and other party representatives of the Parent the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company’s business, properties, prospects and personnel as Parent may reasonably request in examining or utilizing records referred to in this Section 6.2request.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating With respect to the Business which are not delivered information disclosed pursuant to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondencethis Section 6.5, memorandathe parties shall comply with, books and shall use commercial best efforts to cause their respective representatives to comply with, all of account, Tax records and their obligations under the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofConfidentiality Agreement.
(c) As soon as practicable after the execution of this Agreement, the Company shall permit Parent to implement an interface to the Company’s financial reporting system which will allow the transfer of general ledger data to Parent’s financial reporting system (the “Reporting System”). Access to the Reporting System will be provided by Parent’s financial reporting staff and the tasks necessary to complete the interface to the Reporting System will be led by Parent’s accounting staff, Purchaser with the necessary assistance from the Company’s accounting staff and Purchaser's Subsidiary shall cooperate with Sellerother technical staff, if necessary, at Seller's expenseno cost to the Company and provided that neither such installment nor the operation or use by Parent of the Reporting System shall interfere with or disrupt the normal operation of the Company’s business or its financial reporting system or violate any applicable software licenses. Parent will provide the necessary Reporting System software to be installed on a computer in the Company’s accounting department; provided, however, that the information retrieved from the Company’s financial reporting system will be made available only to the Office of Corporate Controller of Parent (it being represented by Parent that such Persons are not directly involved in pricing or any other competitive activity at Parent or any Subsidiary of Parent); provided, further, that Parent shall not use such information other than for diligence purposes of assessing the financial condition of the Company and the Company Subsidiaries for purposes of the transactions contemplated by this Agreement, and make available shall not share, provide or sell the information for any commercial purpose (other than the Transactions) to Seller such documents, books, records any third party or use the information transferred to Purchaser in any manner that could reasonably be considered a restraint on competition or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing result in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense violation of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliatesapplicable laws.
(d) Each party agrees not to destroy any files No investigation heretofore conducted or records which are subject conducted pursuant to this section without giving reasonable notice to Section 6.5 shall affect any representation or warranty made by the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expenseparties hereunder.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Merger Agreement (Cendant Corp)
Access; Confidentiality. (a) Between Upon reasonable advance written notice, subject to applicable logistical restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shall afford Parent’s representatives reasonable access, during normal business hours between the date of this Agreement and the Closingearlier of the Acceptance Time and the date of termination of this Agreement, Seller to the Acquired Companies’ books and records and, during such period, the Company shall furnish promptly to Parent all readily available information concerning its business as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information to the extent: (i) afford each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives such disclosure in the reasonable access to all offices and other facilities judgment of the Business and to all books and records relating to Company could: (a) result in the Business and to the employees and personnel disclosure of any trade secrets of Third Parties; (b) violate any obligation of the BusinessAcquired Companies with respect to confidentiality, non-disclosure or privacy; (c) jeopardize protections afforded to any of the Acquired Companies under the attorney-client privilege or the attorney work product doctrine; (d) violate any Law; or (e) materially interfere with the conduct of the Acquired Companies’ business; or (ii) permit each any such information relates to an Acquisition Proposal, or is included in the minutes of the meetings of the Company Board or its committees and relates to the discussion by the Company Board or any applicable committee of the Transactions or any similar transaction between the Company and any other Person (including any presentations or other materials prepared by or for the Company Board, whether in connection with a specific meeting, or otherwise relating to such subject matter); and provided further that any such access shall be afforded and any such information shall be furnished solely at Parent, Purchaser ’s expense. Any access to the properties of the Acquired Companies shall be subject to their reasonable security measures and Purchaser's Subsidiary insurance requirements and will not include the right to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably requestperform invasive testing. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to Nothing in this Section 6.26.4 shall be construed to require any Acquired Company to (x) prepare any financial statements, projections, reports, analyses, appraisals or opinions that are not readily available or prepared by the Acquired Companies in the ordinary course of business or (y) disclose any personnel records of such Acquired Company relating to individual performance or evaluation records, medical histories or other personal information if such disclosure would violate applicable Law or subject such Acquired Company to liability. No investigation pursuant to this Section 6.4(a) shall affect any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties. All requests for access pursuant to this Section 6.4(a) must be directed to the General Counsel of the Company or another person designated in writing by the Company. Notwithstanding anything herein to the contrary, Parent and Merger Sub shall not, and shall cause their respective representatives not to, contact any employee of the Company or any of its Subsidiaries not involved in the negotiation of the Transactions, nor any partner, licensor, licensee, patient, customer, vendor, research organization, manufacturer or supplier of the Company (nor, except as expressly provided in Section 6.3, any regulatory agency), in connection with the Offer, the Merger or any of the other Transactions without the Company’s prior written consent, and Xxxxxx and Merger Sub acknowledge and agree that any such contact shall be arranged by and with a representative of the Company participating.
(b) On Each of Parent and after the ClosingXxxxxx Sub agrees that it will not, during normal business hoursand will cause its representatives not to, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, use any information obtained pursuant to have access this Section 6.4 (or otherwise pursuant to and examine and make copies of all books and records of Seller relating this Agreement) for any competitive or other purpose unrelated to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofTransactions contemplated by this Agreement.
(c) Parent, Purchaser Parent and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, the Company hereby acknowledge and make available agree to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause continue to be delivered to it bound by the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereatConfidentiality Agreement. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared All information provided by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair Acquired Companies pursuant to this Agreement or replace Assets that are damaged or destroyed, other than ordinary wear obtained by Parent and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(fits representatives pursuant to Section 6.4(a) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to treated as confidential information of the terms Acquired Companies for purposes of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and Prior to the Closing, Seller shall (i) afford each permit Purchaser and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to Seller, to the Books and Records to the extent not prohibited by applicable Law, for any reasonable business purpose relating to this Agreement; provided that any Books and Records or other information that is subject to an attorney-client or other legal privilege or obligation of Parentconfidentiality or non-disclosure shall not be made so accessible; provided, further, that Seller shall, upon the request of Purchaser, Purchaser's Subsidiary and their authorized representatives use commercially reasonable access efforts to all offices and other facilities of obtain the Business and to all books and records relating to applicable consent for the Business and to the employees and personnel of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies disclosure of such books Books and records as they Records that are subject to such obligation of confidentiality or non-disclosure. Such access shall be at Purchaser’s sole cost and expense and may reasonably require and (iii) furnish each not unreasonably interfere with the conduct of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct Seller’s or its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2Affiliates’ businesses.
(b) On Purchaser acknowledges that the information and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered provided to it the records intended pursuant to be destroyed, at such other party's expense.
(eSection 5.1(a) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms and conditions of the Confidentiality Agreement, and such information shall be held by ParentAgreements. As of the Closing, Purchaser’s obligations under the Confidentiality Agreements related to (i) non-use, Purchaser's Subsidiary non-disclosure and their representatives return or destruction of Evaluation Material (as defined in the Confidentiality Agreements) to the extent related to the Acquired Companies shall terminate and (ii) non-solicitation and any applicable non-hire provisions shall terminate with respect to the Employees. All other provisions of the Confidentiality Agreements shall remain in full force and effect in accordance with their terms.
(c) Following the terms Closing Date, without limiting the obligations of the Confidentiality Agreement provided, however, that following the Closing, this Purchaser to provide access pursuant to Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that2.3(b)(i), to the extent not prohibited by applicable Law, Purchaser shall (i) permit Seller and its representatives, during regular business hours and upon reasonable advance notice to Purchaser, the right to examine and make copies of the Books and Records for any reasonable business purpose relating to this Agreement or any Ancillary Agreement, including the preparing or examination of Seller’s and its Affiliates’ regulatory and Tax filings and financial statements and the conduct of any third party litigation or dispute resolution (not involving Purchaser or any of its Affiliates), or regulatory dispute, whether pending or threatened, concerning the business of the Acquired Companies prior to the Closing; and (ii) maintain the Books and Records for the foregoing examination and copying for a period of not less than ten (10) years following the Closing Date. Access to the Books and Records shall be at Seller’s sole cost and expense and may not unreasonably interfere with the conduct of Purchaser’s or its Affiliates’ businesses.
(d) From and after the Closing, Seller shall not, and shall cause each of its Affiliates and such Affiliates’ officers, directors, employees and professional advisers not to, disclose to any other Person any Business Confidential Information; provided that Seller and such Affiliates may disclose Business Confidential Information (i) to the extent required by law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Seller or its Affiliates in the course of any litigation, investigation or administrative proceeding; provided, further, that, if Seller or any of its Affiliates become legally compelled by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any such Business Confidential Information, Seller shall, to the extent reasonably practicable, prior to such disclosure required by law or court order Parent, provide Purchaser or Purchaser's Subsidiary will give Seller with prompt prior written notice of the nature of the law such requirement and cooperate with Purchaser to obtain a protective order or order requiring disclosure and the disclosure similar remedy to cause such Business Confidential Information not to be made in accordance therewithdisclosed, including interposing all available objections thereto. In the event that such protective order or other similar remedy is not obtained, Seller and its Affiliates shall furnish only that portion of Business Confidential Information that has been legally compelled. For purposes of this Section 5.1(d), “Business Confidential Information” means all non-public information disclosed prior to the Closing by Seller to Purchaser that is related to the Run-Off Business.
Appears in 1 contract
Samples: Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Access; Confidentiality. (a) Between From the date of this Agreement to the earlier of the Closing and the Closingdate on which this Agreement is terminated pursuant to Section 11.1, Seller Oxford shall, and shall (i) afford each of Parentcause the Target Companies to, Purchaser, Purchaser's Subsidiary and their authorized representatives reasonable access subject to all offices and other facilities of the Business and to all books and records applicable Laws relating to the Business sharing of information and to the employees and personnel of the Businessupon reasonable advance notice, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2.
(b) On and after the Closingafford Cambridge’s Representatives reasonable access, during normal business hours, Seller will permit each of Parentto its personnel, Purchaserproperties, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities contracts of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the otherTarget Companies and, and within 15 days of receipt of during such noticeperiod, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller Oxford shall, and shall cause the Business and any Business Subsidiary Target Companies to, cooperate with each of Parentfurnish promptly to the other all information concerning the Business, Purchaser, Purchaser's Subsidiary the Target Companies and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission personnel as may reasonably be requested by Cambridge; provided that such access shall not include any right to conduct environmental sampling or testing at any of the Oxford Real Property; provided, further, that all access and furnishing of information contemplated by this Section 7.9 shall be conducted in such investigationa manner as not to interfere unreasonably with the normal operations of Oxford or the Target Companies.
(b) From the date of this Agreement to the earlier of the Closing and the date on which this Agreement is terminated pursuant to Section 11.1, Cambridge shall, and shall provide cause its Subsidiaries to, subject to Parentapplicable Laws relating to the sharing of information and upon reasonable advance notice, Purchaserafford Oxford’s Representatives reasonable access, Purchaser's Subsidiary during normal business hours, to its personnel, properties, books and records and Contracts and, during such period, Cambridge shall, and shall cause its Subsidiaries to, furnish promptly to the other all information concerning its and their authorized representatives businesses, properties and personnel as may reasonably be requested by Oxford; provided that such access shall not include any right to conduct environmental sampling or testing at any Cambridge real property; provided, further, that all plans, soil access and furnishing of information contemplated by this Section 7.9(b) shall be conducted in such a manner as not to interfere unreasonably with the normal operations of Cambridge or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesits Subsidiaries.
(fc) Any All information regarding the Business exchanged pursuant to Section 7.9(a) or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives Section 7.9(b) shall be subject to governed by the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary contained in this Section 7.9, and such information no Party or any of its Subsidiaries shall be held by Parentrequired to provide any access, Purchaseror furnish any information, Purchaser's Subsidiary if doing so would, in such Party’s and their representatives in accordance with its outside legal counsel’s reasonable judgment, (i) cause significant competitive harm to such Party or any of its Subsidiaries if the terms Transactions are not consummated or disclose references concerning the valuation of the Confidentiality Agreement Transactions, (ii) jeopardize the attorney-client or other legal privilege of such Party or any of its Subsidiaries or (iii) conflict with any (A) Law applicable to such Party or any of its Subsidiaries or the assets, or operation of the business, of such Party or any of its Subsidiaries or (B) Contract to which such Party or any of its Subsidiaries is a party or by which any of the its or their assets or properties are bound; provided, however, that following in such instances such Party shall promptly inform the Closingother Party of the general nature of the information being withheld and, this upon the other Party’s request, reasonably cooperate with the other Party to provide such access or furnish such information, in whole or in part, in a manner that would not cause any such competitive harm (including by entering in to a “clean team” or similar agreement), jeopardize any such privilege (including by entering into a common interest or joint defense agreement) or conflict with any such Law or Contract. No access provided or information furnished pursuant to Section 6.2 7.9(a) or Section 7.9(b) shall affect the representations, warranties, covenants or agreements of the Parties, the conditions to the obligations of the Parties or the other remedies available to the other Party to which such access was provided or such information was furnished.
(d) Cambridge and Oxford agree that their respective obligations under the Confidentiality Agreement shall not prohibit Parentcontinue and remain in effect until the Closing, Purchaser or Purchaser's Subsidiary upon which such obligations shall expire. In the event that this Agreement is terminated pursuant to the terms hereof prior to the Closing, the Confidentiality Agreement shall remain in full force and effect in accordance with its terms or, if later, for one (1) years from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure date of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithtermination.
Appears in 1 contract
Samples: Combination Agreement (CF Industries Holdings, Inc.)
Access; Confidentiality. (a) Between Upon reasonable advance notice to the date Seller and subject to the prior written consent of this Agreement Xxxxxxx Xxxx, which shall not be unreasonably withheld, the Seller shall afford Purchaser and its Representatives reasonable access, during normal business hours throughout the period prior to the Closing, Seller shall (i) afford each of Parentto the properties, Purchaserbooks, Purchaser's Subsidiary contracts and their authorized representatives reasonable access to all offices and other facilities records of the Business Company and, during such period, shall furnish promptly to Purchaser and to its Representatives all books and records relating to information concerning the Business and to the employees business, properties, assets, contracts, Permits, results of operations and personnel of the BusinessCompany as may reasonably be requested; provided, however, that the Seller may restrict the foregoing access to the extent that (i) in the reasonable judgment of the Seller, any law, treaty, rule or regulation of any Governmental Entity applicable to the Seller or the Company requires the Seller or the Company to restrict or prohibit access to any such properties or information, (ii) permit each in the judgment of Parentthe Seller, Purchaser and Purchaser's Subsidiary the information is subject to make such inspections and confidentiality obligations to make copies of such books and records as they may reasonably require and a third party, (iii) furnish each such disclosure would result in disclosure of Parentany Trade Secrets of third parties, or (iv) disclosure of any such information or document could result in the loss of attorney-client privilege; provided, however, that with respect to this clause (iv), the Seller and/or its counsel shall use their reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to avoid the loss of attorney-client privilege; and provided further that as a condition to such access, Purchaser hereby agrees (x) that Purchaser and Purchaser's Subsidiary its Representatives shall not interfere with such financial the operations of the properties, (y) to pay for the cost to repair any damage caused by Purchaser or its Representatives and operating data (z) to indemnify, defend and other hold the Seller and its Affiliates harmless with respect to any personal injury or property damage arising from or relating to entry on the Owned or Leased Real Property by Purchaser or its Representatives. All requests by Purchaser and its Representatives for information concerning the Business as they may from time and access made pursuant to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.25.5 shall be made in writing directed to Xxxxxxx Xxxx. Further, Purchaser shall not contact any supplier, customer or vendor of the Company or the Seller without obtaining prior written consent of an executive officer of the Seller.
(b) On and after the Closing, during normal business hours, Seller The parties hereto will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary hold any such information in confidence pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held . The parties hereto will continue to abide by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of that certain confidentiality agreement, dated November 19, 2010, between the Seller and Purchaser (the “Confidentiality Agreement”), the terms of which are incorporated by reference into this Agreement, and which terms shall survive until the Closing, at which time the Confidentiality Agreement will terminate; provided, however, that following if this Agreement is, for any reason, terminated prior to the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using continue in full force and providing to third parties such information concerning effect. Beginning on the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation date of this Agreement, neither the Company, the Seller, nor any of their respective Affiliates, will waive any right under any other nondisclosure agreement previously entered into by the Company or the Seller and any other Person with respect to evaluation of the sale of the Company without the prior written consent of Purchaser.
(c) From and after the Closing, Purchaser shall preserve and retain all information and books and records of the Company, including accounting, legal, personnel, auditing and other books and records and any documents relating to any governmental or non-governmental claims, actions, suits, Proceedings or investigations with respect to the Company on or prior to the Closing Date in a manner consistent with the document retention policy of Purchaser made available to the Company prior to the Closing.
(d) In the event and for so long as the Seller or any of its Affiliates is contesting or defending against or prosecuting any third-party charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand relating to the indemnification matters provided for in Section 8.2, Purchaser will (and will cause its Affiliates to) use all reasonable efforts to (i) fully cooperate with the Seller, its Affiliates and their respective Representatives in, and, subject to Section 5.5(e), assist the Seller, its Affiliates and their respective Representatives with, the contest, defense or prosecution, (ii) the use or disclosure make available its personnel (including for purposes of such information that becomes available to Parentfact finding, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representativesconsultation, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of interviews, depositions and, if required, as witnesses), and (iii) provide such information, testimony and access to its books and records, in each case as shall be reasonably requested in connection with the contest, defense or prosecution.
(iiie) The Seller shall reimburse Purchaser for reasonable out-of-pocket costs and expenses incurred in connection with assisting the disclosure Seller pursuant to subsection (d) of such information this Section 5.5 at the request of the Seller, its Affiliates and their respective Representatives. No party shall be required by law this Section 5.5 to take any action that would unreasonably interfere with the conduct of its business or court order, provided that, unreasonably disrupt its normal operations. Any information received by any party pursuant to this Section 5.5 shall be subject to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewithConfidentiality Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Concha Y Toro Winery Inc)
Access; Confidentiality. (a) Between the date of this Agreement hereof and the Closing, the Seller Parties shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives reasonable full and complete access to Seller Parties' employees, (including the Business Employees) medical staff, and other agents and representatives and during normal working hours to all books, records, offices and other facilities of the Business and to all books and records relating to the Business and to the employees and personnel of the BusinessSeller Parties, (ii) permit each of Parent, the Purchaser and Purchaser's Subsidiary Parties to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, the Purchaser and Purchaser's Subsidiary Parties with such financial and operating data and other information concerning related to the Hospitals, the Business or the Seller Parties as they the Purchaser Parties may from time to time reasonably request. Each party The Purchaser Parties and their authorized representatives shall conduct all such inspections under the supervision of personnel of the Seller Parties in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request business and operations of the Seller Parties and in examining or utilizing records referred a manner as to in maintain the confidentiality of this Section 6.2Agreement.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to The Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary Parties and their authorized representatives (including its their designated engineers or engineer, architects, surveyors and/or consultants) may may, upon reasonable notice and at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) Property in order to investigate and assess, as Parent, the Purchaser and Purchaser's Subsidiary Parties deem necessary or appropriate in their sole and absolute discretion, the condition (including the structural and environmental condition condition) of such properties or the business conducted thereatAssets. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. The Seller shall, and Parties shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives full access to their properties and businessesthe Assets, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary the Purchaser Parties and their authorized representatives all information maintained by the Seller Parties and related to the condition of the Assets, including the Real Property, and all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to the Seller or any Business Subsidiary Parties or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representativesagents.
(fc) Any information regarding The provisions of that certain Confidentiality Agreement dated February 21, 2005 among the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives parties (the "Confidentiality Agreement") shall be subject remain binding and in full force and effect until the Closing. Notwithstanding anything to the terms of contrary contained herein or in the Confidentiality Agreement, and such information shall be held the confidentiality obligations as they relate to the transactions contemplated by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally apply to the public purported or which subsequently has come into claimed Federal income tax treatment of the public domaintransactions (the "Tax Treatment") or to any fact that may be relevant to understanding the purported or claimed Federal income tax treatment of the transactions (the "Tax Structure"), other than by way of disclosure in violation of this Agreementand each party hereto (and any employee, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such informationrepresentative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the Tax Treatment and Tax Structure of the transactions contemplated by this Agreement and any materials of any kind (iiiincluding any tax opinions or other tax analyses) the disclosure of such information required by law or court order, provided that, that relate to the extent practicable, prior to such disclosure required by law Tax Treatment or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.Tax
Appears in 1 contract
Samples: Purchase, Sale and Loan Agreement (Medical Properties Trust Inc)
Access; Confidentiality. (a) Between From the date of this Agreement until the Closing Date, the Shareholders shall cause the Company and its Subsidiaries to, upon reasonable prior written notice to the Closing, Seller shall Company (i) afford each of Parent, Purchaser, Purchaser's Subsidiary give the Purchaser and their its authorized representatives reasonable access during normal business hours to all offices its properties, books and other facilities records, customers, suppliers, employees and others doing business with the Company, provided, that the Purchaser and its authorized representatives shall not unreasonably interfere in the business and operations of the Business Company and to all books its Subsidiaries, and records relating to the Business and to the employees and personnel of the Business, (ii) permit each of Parent, furnish the Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary its authorized representative with such financial and operating data and other information concerning the Business business and properties of the Company and the Subsidiaries as they the Purchaser may from time to time reasonably request. Each party Notwithstanding the foregoing sentence, the Purchaser agrees that it will direct not prior to the Closing conduct any invasive environmental investigations, study, audit or testing on any of the properties owned or leased by the Company or its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2Subsidiaries.
(b) On The Purchaser shall hold and after treat all documents and information concerning the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating Company furnished to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto its respective representatives in connection with the transactions contemplated by this Agreement confidential in accordance with the Confidentiality Agreement dated March 7, 2003, between the Company (including correspondence, memoranda, books of account, Tax records and the likeor its representative) and relating Purchaser (the "CONFIDENTIALITY AGREEMENT"), which Confidentiality Agreement shall remain in full force and effect in accordance with its terms, the Purchaser hereby adopting and agreeing to events occurring prior to be bound by the date hereof and to transactions or events occurring prior to the date hereofterms thereof.
(c) Parent, Purchaser The Shareholders shall use their commercially reasonable efforts to cause the Company and Purchaser's Subsidiary shall its Subsidiaries and their respective officers to reasonably cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations the financing necessary to third parties or to defend or prepare for consummate the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destructiontransactions contemplated hereby, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) providing direct contact between prospective lenders and the use or disclosure officers of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, Company and its Subsidiaries and (ii) providing assistance in the use or disclosure of such information that becomes available preparation for, and participating in, meetings, due diligence sessions, road shows and similar presentations to Parentand with, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representativesamong others, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such informationprospective lenders, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure investors and the disclosure to be made in accordance therewithrating agencies.
Appears in 1 contract
Access; Confidentiality. (a) Between Subject to any restrictions under applicable law, the date Company shall continue to give (and shall cause each of its Subsidiaries to give) the officers, employees, accountants, counsel, financing sources and other representatives of Parent, reasonable access for reasonable purposes in light of the transactions contemplated by this Agreement Agreement, during normal business hours during the period prior to the Closing Date to all its properties, books, contracts, commitments and records and, during such period, the Closing, Seller Company shall (and shall cause each of its Subsidiaries to) furnish promptly to Parent (i) afford a copy of each report, schedule, registration statement and other document publicly filed or received by it during such period pursuant to the requirements of Parent, Purchaser, Purchaser's federal securities laws and (ii) information regarding any material business development of the Company or any Subsidiary and their authorized representatives all other information concerning its business, properties and personnel as Parent may reasonably request; PROVIDED, HOWEVER, that the Company shall not be required to waive any legal privilege by virtue of this Section 6.5. The Company shall use its reasonable access best efforts to enter into an appropriate agreements with Parent to allow for disclosures under this Section 6.5(a) without waiving or otherwise relinquishing any applicable privileges. During this period, the Company will also consult with Parent on all offices and other facilities matters outside the ordinary course of the Business and to all books and records business relating to the Business Company's business and strategy. The Company expressly agrees that from the date hereof until the Closing Date, the Company will provide Parent and Merger Subsidiary with all documents, materials and information in the Company's possession or control pertaining to environmental matters concerning any current or previous Company owned, leased or operated property, facility, or business including compliance with and responsibility or liability under, any Environmental Laws or related to Hazardous Substances. The Company grants access to Parent to any of its currently owned, leased or operated properties, for environmental investigation, including invasive testing if reasonably warranted and recommended by a qualified consultant at the employees conclusion of a Phase I Environmental Audit; PROVIDED, HOWEVER, that Parent provide a written work plan for Company's prior review and personnel approval for any such invasive work. Unless otherwise required by law and until the Closing Date, Parent and Merger Subsidiary shall hold any such information which is non-public information in confidence and shall not use such information except in accordance with, and shall otherwise abide by, the provisions of the Business, (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary Confidentiality Agreement. No investigation pursuant to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may from time to time reasonably request. Each party will direct its employees to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.26.5(a) shall affect any representation or warranty made by the Company hereunder.
(b) On and after Prior to the Closing, during normal business hoursthe Company and its accountants, Seller will permit each counsel, agents and other representatives shall cooperate with Parent by providing information about the Company which is necessary for Parent and its accountants, agents, counsel and other representatives to prepare the Disclosure Documents. Notwithstanding the penultimate sentence of Section 6.5(a) hereof, Parent may disclose, or cause its representatives to disclose, and at the request of Parent, Purchaser, Purchaser's Subsidiary the Company shall and shall cause its Subsidiaries to disclose information concerning the Company and its Subsidiaries and their authorized representativesrespective businesses, to have access to assets and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondenceproperties, memoranda, books of account, Tax records and the like) and relating transactions contemplated by this Agreement to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing prospective financing sources in connection with any tax determination or contractual obligations therewith, provided that such financing sources agree to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or hold such information in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) confidence in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shallaccordance with, and shall cause otherwise abide by, the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms provisions of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Samples: Merger Agreement (Miltope Group Inc)
Access; Confidentiality. (a) Between On and before the date of this Agreement and the Closing, Seller shall Closing Date:
(i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable will have access to all offices and other facilities of the Business Seller’s premises and to all Seller’s books and records relating to the Business and to the officers, employees and personnel of the Business, agents during customary business hours and upon reasonable notice,
(ii) permit each of Parent, Seller’s officers and Parent will furnish and cause Seller’s employees and agents to furnish Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they may with respect to Seller’s business and properties that Purchaser from time to time reasonably request. Each party requests, and
(iii) Purchaser may monitor Seller’s operations and consult with each of Seller’s officers concerning the conduct of Seller’s business, and Seller will direct its employees to render any assistance which take Purchaser’s recommendations concerning such conduct into consideration, it being understood, however, that before the other party may reasonably request Closing Date Seller’s business is being operated at Seller’s risk and that Seller will remain in examining or utilizing records referred to in control of Seller before such date, except as otherwise expressly provided by this Section 6.2Agreement.
(b) On The parties mutually acknowledge that they may become privy to the other’s Confidential Information, and after that communication of such Confidential Information to third parties (whether such communication is authorized by Purchaser or Seller respectively or otherwise) could damage the Closing, during normal business hoursother’s business. Purchaser, Seller will permit each of and Parent therefore mutually agree to take reasonable steps to insure that such information about the Purchaser or Seller, obtained by Seller or Purchaser and Parent, Purchaserrespectively, Purchaser's Subsidiary and or any of their authorized respective employees, officers, agents, attorneys, or other accredited representatives, shall remain confidential and not be disclosed or revealed to outside sources except to the extent required by applicable law or pursuant to a court order or to persons under their control, third parties serving as legal, accounting or investment advisors, rating agencies or to lending institutions involved in connection with providing financing for this transaction. Further, if the transactions contemplated by this Agreement are not consummated, no party will use such information in competition with any other party (except to the extent that such information can be shown to have access to and examine and make copies been (i) in the public domain other than as a result of all books and records of Seller relating disclosure by the disclosee, (ii) previously known to the Business which disclosee, or (iii) later acquired by the disclosee from other legitimate sources, provided such sources are not delivered known by the disclosee to be bound by any confidentiality agreement with the disclosing party). As used herein “Confidential Information” includes Purchaser’s underwriting guidelines and related policies and criteria and other information not ordinarily known by noncompany personnel, including trade secrets, pricing policy and records, and all other information normally understood to be confidential or otherwise designated as such by Seller or Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereofParent.
(c) Parent, Purchaser will continue to be bound by the terms and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities conditions of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliatesletter agreement between Parent and Purchaser dated September 27, 2007.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall cause the Business and any Business Subsidiary to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
Appears in 1 contract
Access; Confidentiality. (a) Between the date of this Agreement and the Closing, Parent and Seller shall (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access to all offices the Assets and other the facilities of the Business Seller, and to all books and records relating to the Business and to the employees and personnel of the Business, thereto (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business Parent (solely with respect to the Seller and the Assets) and the Seller as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall use reasonable efforts to conduct all such inspections in a manner that will direct its employees minimize disruptions to render any assistance which the other party may reasonably request in examining or utilizing records referred to in this Section 6.2business and operations of the Parent and the Seller.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parent, Purchaser and Purchaser's Subsidiary shall cooperate with Seller, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers engineers, or consultants) may at any time reasonable times and with Parent's prior consent (which may be either oral or written), which consent shall not be unreasonably withheld, enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) Assets in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, assess the environmental condition of the Assets and such properties or the business of the Seller conducted thereat. Such investigation by Purchaser may include, but need not be limited to, include the performance of soil noninvasive and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections nondestructive tests or other procedures (hereinafter "Phase II Testing") relating to environmental conditions or Materials of Environmental ConcernConcern and Purchaser shall provide to Parent and Seller any scope of work relating to such Phase II Testing prepared by an environmental consulting firm for Parent's and Seller's review. Purchaser shall not conduct any Phase II Testing without receipt of Parent's and Seller's approval. Parent and Seller shall cooperate with Purchaser and its authorized representatives in conducting such investigation and shall allow Purchaser and its authorized representatives full access to the Assets and their properties and businesses.
(c) The provisions of the Confidentiality Agreement, to which Seller by signing this Agreement agrees to be bound, are hereby incorporated herein and shall remain binding and in full force and effect, except that the Confidentiality Agreement shall not apply to any documents prepared in connection with a proceeding before or filed with, or other disclosure made to, a court, arbitration tribunal or mediation service in order to enforce any party's rights arising in connection with the termination of this Agreement pursuant to Section 7.2. All obligations of the Purchaser under the Confidentiality Agreement with respect to the Assets purchased and Assumed Contracts shall terminate simultaneously with the Closing. Except as otherwise provided herein or in the Ancillary Agreements, Parent and Seller shall, and shall cause their Subsidiaries and the Business consultants, advisors and any Business Subsidiary representatives of itself and each of their Subsidiaries to, cooperate with each treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, in the opinion of Parentlegal counsel, Purchaserby other requirements of law) all nonpublic, Purchaser's Subsidiary confidential or proprietary information concerning the Seller (other than the Excluded Assets and their authorized representatives in conducting such investigationthe Retained Know-How Rights) and the Assets, and Parent and the Seller shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigationnot, and shall provide to Parentcause their Subsidiaries and the consultants, Purchaser, Purchaser's Subsidiary advisors and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any itself and each of their engineersSubsidiaries not to, consultants or agents and all other after the date hereof, use such information relating to environmental matters in respect the detriment of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Parent, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms of the Confidentiality Agreement provided, however, that following the Closing, this Section 6.2 and the Confidentiality Agreement shall not prohibit Parent, Purchaser or Purchaser's Subsidiary from using and providing to third parties such information concerning the Assets or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or Purchaser's Subsidiary from (i) the use or disclosure of such information which currently is known generally to the public or which subsequently has come into the public domain, other than by way of disclosure in violation of this Agreement, (ii) the use or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of such information, or (iii) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure to be made in accordance therewith.
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Access; Confidentiality. (a) Between From the date of this Agreement hereof until the Closing Date, each Selling Shareholder, severally and not jointly, shall cause the Closing, Seller shall Company to (i) afford each of Parent, Purchaser, Purchaser's Subsidiary Purchaser and their its authorized representatives reasonable access to all books, records, offices and other facilities of the Business Company, its Subsidiaries and (to the extent within the control of any of the Company, its Subsidiaries, or such Selling Shareholder or any of its Affiliates) the KSO Unit, to the Assets and to all books personnel and records relating to the Business and to the employees and personnel suppliers of each of the Business, Company and its Subsidiaries (ii) permit each of Parent, Purchaser and Purchaser's Subsidiary to make such inspections (including making such reasonable investigations and assessments, as Purchaser deems necessary or appropriate in its sole and absolute discretion) of the condition of 60 <PAGE> such properties or the business conducted there and to make copies of such books and records as they it may reasonably require and (iii) furnish each of Parent, Purchaser and Purchaser's Subsidiary with such financial and operating data and other information concerning the Business as they Purchaser may from time to time reasonably request. Each party Purchaser and its authorized representatives shall use reasonable efforts to conduct all such inspections in a manner that will direct minimize disruptions to the business and operations of the Company, its employees Subsidiaries and the KSO Unit. Notwithstanding the foregoing, the Company shall not be required to render disclose to Purchaser any assistance information (i) the disclosure of which would prejudice AriaWest's claims and defenses in the other party may Arbitration Proceeding (as reasonably request in examining or utilizing records referred determined by the Selling Shareholders) and (ii) which would not be material to in this Section 6.2a purchaser of the Sale Shares but for the Arbitration Proceeding.
(b) On and after the Closing, during normal business hours, Seller will permit each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives, to have access to and examine and make copies of all books and records of Seller relating to the Business which are not delivered to Purchaser or Purchaser's Subsidiary pursuant hereto (including correspondence, memoranda, books of account, Tax records and the like) and relating to events occurring prior to From the date hereof and to transactions or events occurring prior to the date hereof.
(c) Parentat all times thereafter, Purchaser and Purchaser's Subsidiary shall cooperate with Sellerexcept as otherwise provided herein, at Seller's expense, and make available to Seller such documents, books, records or information transferred to Purchaser or Purchaser's Subsidiary and relating to activities each of the Business or Seller prior to the Closing as Seller may reasonably require after the Closing in connection with any tax determination or contractual obligations to third parties or to defend or prepare for the defense of any claim against Seller or to prosecute or prepare for the prosecution of claims against third parties by Seller relating to the conduct of the business of the Business by Seller prior to the Closing or in connection with any governmental investigation of Seller or any of its Affiliates.
(d) Each party agrees not to destroy any files or records which are subject to this section without giving reasonable notice to the other, Selling Shareholders and within 15 days of receipt of such notice, such other party may cause to be delivered to it the records intended to be destroyed, at such other party's expense.
(e) Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives (including its designated engineers or consultants) may at any time enter into and upon all or any portion of the Business' or any Business Subsidiary's properties (including all Real Property) in order to investigate and assess, as Parent, Purchaser and Purchaser's Subsidiary deem necessary or appropriate in their sole and absolute discretion, the environmental condition of such properties or the business conducted thereat. Such investigation may include, but need not be limited to, the performance of soil and surface or ground water sampling, monitoring, borings or testing and any other tests, investigations, audits, assessments, studies, inspections or other procedures relating to environmental conditions or Materials of Environmental Concern. Seller shall, and shall (in the case of the Selling Shareholder severally and not jointly) use its reasonable efforts to cause the Business consultants, advisors and any Business Subsidiary representatives of the Company and its Subsidiaries to, cooperate with each of Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives in conducting such investigation, shall allow Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives full access to their properties and businesses, together with full permission to conduct such investigation, and shall provide to Parent, Purchaser, Purchaser's Subsidiary and their authorized representatives all plans, soil or surface or ground water tests or reports, any environmental investigation results, reports or assessments previously or contemporaneously conducted or prepared by or on behalf of, or in the possession of or reasonably available to Seller or any Business Subsidiary or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of the Business. Purchaser shall restore, repair or replace Assets that are damaged or destroyed, other than ordinary wear and tear, as a result of Purchaser's action. Purchaser shall indemnify Seller for all such damage or destruction, including the damage or destruction arising out of an inspection conducted by Purchaser or Purchaser's representatives.
(f) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Subsidiaries by Parent, Purchaser, Purchaser's Subsidiary or their representatives shall be subject to treat the terms of the Confidentiality AgreementTransaction Documents and all nonpublic, confidential or proprietary information concerning the Company, its Subsidiaries and the KSO Unit as strictly confidential (except to the extent such information shall is requested to be held disclosed by Parentjudicial or administrative process or, Purchaser, Purchaser's Subsidiary and their representatives in accordance with the terms reasonable opinion of the Confidentiality Agreement provideddisclosing party, howeverby other requirements of law), provided that following (i) prior to the Closing, this Section 6.2 Purchaser may use and the Confidentiality Agreement shall not prohibit Parent, Purchaser or disclose such information in connection with Purchaser's Subsidiary from using evaluation of the Transactions, including evaluation of the acquisition of the Sale Shares, negotiation of the Transaction Documents, preparation and providing to third parties such information concerning the Assets circulation of any disclosure, notice or the Business as it may deem appropriate. The foregoing shall not preclude Parent, Purchaser or other materials in connection with Purchaser's Subsidiary from (i) the use or disclosure meeting of such information which currently is known generally to the public or which subsequently has come into the public domain, shareholders and obtaining any other than by way of disclosure in violation of this Agreement, required Consents and (ii) as and from the Closing Date Purchaser shall not be subject to any such limitation. Each of the Selling Shareholders shall (as and from the 61 <PAGE> Closing Date), and shall (severally and not jointly) use its reasonable efforts to cause such Selling Shareholder's consultants, advisors and representatives to, refrain from using or disclosure of such information that becomes available to Parent, Purchaser or Purchaser's Subsidiary on a non- confidential basis from a source other than Seller or the Seller's representatives, provided that such source is not known by Purchaser or Purchaser's Subsidiary to have a legal obligation prohibiting the disclosure of disclosing such information, or except (iiiA) the disclosure of such information required by law or court order, provided that, to the extent practicable, prior to such disclosure required by law or court order Parent, Purchaser or Purchaser's Subsidiary will give Seller prior written notice of the nature of the law or order requiring disclosure and the disclosure requested to be made disclosed by judicial or administrative process or by other requirements of law, (B) as required for internal reporting or archival purposes or (C) for use in accordance therewithany Proceeding.
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