Access; Confidentiality. (a) Morgan shall, upon reasonable notice and subject to applicable Laxx xxxating to the exchange of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), properties, personnel and to such other information as Parent may reasonably request and, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, and (ii) all other information concerning the business, properties and personnel of Morgan as Parent may reasonably request. (b) Parent shall, xxxx xeasonable notice and subject to applicable Laws relating to the exchange of information, afford Morgan and its officers, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it pursuant to federal or state securities or banking Laws, and (ii) all other information concerning the business or properties of Parent as Morgan may reasonably request. (c) Each of Morgan and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement. (d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become available.
Appears in 1 contract
Samples: Merger Agreement (LNB Bancorp Inc)
Access; Confidentiality. (a) Morgan shallFrom the date hereof to the Effective Time, upon reasonable notice notice, the Company shall (and subject to applicable Laxx xxxating shall cause each of its Subsidiaries to) afford to the exchange of information, afford Parent and its officers, employees, accountants, counsel, accountants financing sources and other authorized representativesrepresentatives of Parent, such access access, during normal business hours throughout during the period prior to the Effective Time Appointment Date, to the all its properties, books, contracts, commitments and records (including, without limitation, tax returns and work papers of independent auditors), properties, personnel and to such other information as Parent may reasonably request and, during such period, it the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to the Parent (ia) a copy of each material report, schedule schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal or state securities or banking Laws, laws and (iib) all other information concerning the its business, properties and personnel of Morgan 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. 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 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 this Section 6.5(a) shall affect any representation or warranty made by the Company hereunder.
(b) Parent shall, xxxx xeasonable notice and subject to applicable Laws relating Prior to the exchange of informationClosing, afford Morgan the Company and its officers, employeesaccountants, counsel, accountants agents and othex xxxxorized representativesother 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 the Disclosure Documents and such access during normal business hours throughout other documents and other reasonable requests with respect to such documents. Notwithstanding the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers penultimate sentence of independent auditorsSection 6.5(a), and the Purchaser may disclose, or cause its representatives to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it pursuant to federal or state securities or banking Lawsdisclose, and (ii) all other information concerning at the business or properties of Parent as Morgan may reasonably request.
(c) Each of Morgan and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (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 request of the transactions contemplated by this Agreement. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectivelyPurchaser, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement Company shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidentialSubsidiaries to, all Information disclose information concerning the Company and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafterits Subsidiaries, and to the extent practical on the same daytheir respective businesses, assets and properties, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary Disclosure Documents and usual course of business as to prospective financing sources in connection with the same shall become availableTransactions.
Appears in 1 contract
Access; Confidentiality. (a) Morgan shallUpon reasonable notice, upon reasonable notice and subject to except as may otherwise be required by applicable Laxx xxxating to law, Hercules shall (and shall cause the exchange of information, afford Parent Company and its Subsidiaries to) afford Purchaser's directors, officers, employees, counsel, accountants and other authorized representativesrepresentatives access, such access during normal business hours throughout the period prior to the Effective Time Closing, to the properties, books, Contracts and records (including, without limitation, tax returns and work papers of independent auditors), properties, personnel and to such other information as Parent may reasonably request the Company and, during such period, it shall (and shall cause the Company and its Subsidiaries to) furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, and (ii) Purchaser all other information concerning the business, properties and personnel of Morgan the Company as Parent may reasonably requestbe requested, provided that no investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by Sellers, and provided, further, that the foregoing shall not require Hercules or the Company to permit any inspection, or to disclose any information, that in the reasonable judgment of Hercules would result in the disclosure of any trade secrets of third parties or violate any of its or the Company's obligations with respect to confidentiality. All requests for information made pursuant to this Section shall be directed to an executive officer of Hercules or such Person as may be designated by its executive officers, as the case may be. Any information regarding the Company heretofore or hereafter obtained by Purchaser or its representatives from either Hercules or the Company shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Purchaser and its representatives in accordance with the terms of the Confidentiality Agreement. Purchaser agrees to comply, and to ensure that its representatives comply, with all reasonable restrictions imposed upon Purchaser by Hercules or the Company in connection with the access provided pursuant hereto and, in the event this Agreement is terminated, will indemnify and hold harmless the Sellers for Losses and Expenses arising as a direct result of any act or omission by Hercules, the Company or any of the Company's Subsidiaries taken or not taken, as the case may be, at the direction of Purchaser or its representatives.
(b) Parent shallUpon reasonable notice, xxxx xeasonable notice and subject to except as may otherwise be required by applicable Laws relating to the exchange of informationlaw, Purchaser shall (and shall cause its Subsidiaries to) afford Morgan and its Hercules's directors, officers, employees, counsel, accountants and othex xxxxorized representativesother authorized representatives access, such access during normal business hours throughout the period prior to the Effective Time Closing, to the properties, books, Contracts and records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request Purchaser and, during such period, it shall fxxxxxx (and shall cause its Subsidiaries to) furnish promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it pursuant to federal or state securities or banking Laws, and (ii) Hercules all other information concerning the business or business, properties and personnel of Parent Purchaser as Morgan may reasonably request.
(c) Each of Morgan and Xxxxxx agrees be requested, provided that it will not, and will cause its repxxxxxxatives not to, use any information obtained no investigation pursuant to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify any representation or waive warranty made by Purchaser, and provided, further, that the foregoing shall not require Purchaser to permit any representationinspection, warrantyor to disclose any information, covenant that in the reasonable judgment of Purchaser would result in the disclosure of any trade secrets of third parties or agreement in violate any of its obligations with respect to confidentiality. All requests for information made pursuant to this Section shall be directed to an executive officer of Purchaser or such Person as may be designated by its executive officers, as the case may be. Any information regarding Purchaser heretofore or hereafter obtained by Hercules or its representatives from Purchaser shall be subject to the terms of the Purchaser Confidentiality Agreement, or and such information shall be held by Hercules and the conditions Company and their representatives in accordance with the terms of the Purchaser Confidentiality Agreement. Hercules agrees to either party's obligation comply, and to consummate ensure that its representatives comply, with all reasonable restrictions imposed upon Hercules by Purchaser in connection with the transactions contemplated by this Agreement.
(d) During access provided pursuant hereto and, in the period from the date of event this Agreement to is terminated, will indemnify and hold harmless the Effective TimePurchaser for Losses and Expenses arising as a direct result of any act or omission by Purchaser or any of the Purchaser's Subsidiaries taken or not taken, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become availablecase may be, at the direction of Hercules or its representatives.
Appears in 1 contract
Access; Confidentiality. (a) Morgan shallFrom and after the Closing Date, in connection with any reasonable business purpose, including the preparation of Tax Returns, claims or obligations relating to Excluded Liabilities, financial statements, U.S. Securities and Exchange Commission (the “ SEC”), or the determination of any matter relating to the rights or obligations of the Seller Parties or any of their Affiliates under any Transaction Agreement, upon reasonable notice prior notice, and subject to applicable Laxx xxxating except to the exchange extent necessary to (i) ensure compliance with any applicable Law, (ii) preserve any applicable privilege (including the attorney-client privilege) or (iii) comply with any confidentiality obligations, Buyer shall, and shall cause each of information, afford Parent its respective Affiliates and its officersand their respective Representatives to (x) afford each Seller Party and its Representatives and their respective Affiliates reasonable access, employees, counsel, accountants and other authorized representatives, such access during normal business hours throughout the period prior hours, to the Effective Time to the examine, inspect and copy such books, records records, documents and other information of Buyer and its Affiliates in respect of the Business, the Transferred Assets and the Assumed Liabilities, (includingy) furnish to each Seller Party and its Representatives and their respective Affiliates, without limitationsuch additional financial data and other information regarding the Transferred Assets as any Seller Party or its Representatives may from time to time reasonably request and (z) make available to each Seller Party and their Representatives and its respective Affiliates those employees of Buyer or its Affiliates whose assistance, tax returns expertise, testimony, notes or recollections or presence may be necessary to assist such Seller Party, its Representatives or their respective Affiliates in connection with its inquiries for any purpose referred to above, including the presence of such persons for interviews and depositions and as witnesses in hearings or trials for such purposes; provided, however, that such investigation or access shall not unreasonably interfere with the business or operations of Buyer or any of its Affiliates; and provided, further, that the auditors and accountants of Buyer or its Affiliates shall not be obligated to make any work papers of independent available to any Person except in accordance with such auditors), properties, personnel ’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such other information as Parent may access to work papers in form and substance reasonably request and, during acceptable to such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal auditors or state securities or banking Laws, and (ii) all other information concerning the business, properties and personnel of Morgan as Parent may reasonably requestaccountants.
(b) Parent shallIf so requested by Buyer, xxxx xeasonable notice and subject to applicable Laws relating to on the exchange one hand, or Seller or any of informationits Affiliates, afford Morgan on the other hand, Seller or one of its Affiliates, or Buyer or one of its Affiliates, as the case may be, shall enter into a customary joint defense agreement or common interest agreement with Buyer and its officersAffiliates, employeesor Seller and its Affiliates, counselas applicable, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior with respect to the Effective Time any information to the books, records (including, without limitation, tax returns and work papers of independent auditors), and be provided to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it Seller or its Affiliates pursuant to federal or state securities or banking Laws, and (ii) all other information concerning the business or properties of Parent as Morgan may reasonably requestSection 7.01(a).
(c) Each of Morgan The Parties have made the agreements and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this covenants set forth in Section 6.05 (as well as any other information obtained prior to the date hereof in connection with the entering into of this Agreement7.01(c) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this AgreementDisclosure Schedules, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering which is hereby incorporated into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become available.
Appears in 1 contract
Samples: Asset Purchase Agreement (Starwood Property Trust, Inc.)
Access; Confidentiality. (a) Morgan Borrower shall, upon reasonable notice and subject to applicable Laxx xxxating to the exchange of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such : (i) provide access during normal business hours throughout the period prior to Agent and any of its officers, employees and agents, as frequently as Agent determines to be appropriate, upon reasonable advance notice (unless a Default shall have occurred and be continuing, in which event no notice shall be required and Agent and its officers, employees and agents shall have access at any and all times), to the Effective Time properties and facilities of Borrower or any of its Subsidiaries; (ii) permit Agent and any of its officers, employees and agents to inspect, audit and make extracts from all of Borrower's and its Subsidiaries' records, files and books of account; and (iii) subject to the terms of the Fee Letter, permit Agent and any of its officers, employees and agents on behalf of Lenders, upon prior notice to Borrower (unless a Default shall have occurred and be continuing, in which event no notice shall be required and Agent and its officers, employees and agents shall be permitted to inspect, audit and make such extracts at any and all times) to conduct audits to inspect, review and evaluate the Collateral, and Borrower agrees to render to Agent at Borrower's cost and expense, such clerical and other assistance as may be reasonably requested with regard thereto; provided, however, that Borrower shall be permitted to have a representative of Borrower present during any such visit, inspection or audit by Agent or Agent's officers, employees or agents, it being 25 understood that Borrower's right to have a representative present shall not result in a delay of any such visit, inspection or audit. Borrower shall, and shall cause each of its Subsidiaries to, make available to Agent and its counsel, as quickly as practicable under the circumstances, originals or copies of all books, records, board minutes, contracts, insurance policies, environmental audits, business plans, files, financial statements (actual and pro forma), filings with federal, state and local regulatory agencies, and other instruments and documents which Agent may reasonably request. Borrower shall deliver any document or instrument reasonably necessary for Agent, as it may from time to time reasonably request, to obtain records (from any service bureau or other Person which maintains records for Borrower, and shall maintain duplicate records or supporting documentation on media, including, without limitation, tax returns computer tapes and work papers of independent auditors)discs owned by Borrower. Upon notice from Agent, properties, personnel Borrower shall instruct its certified public accountants and to such other information as Parent may reasonably request and, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule its banking and other document filed by it pursuant financial institutions to federal or state securities or banking Laws, make available to Agent such information and (ii) all other information concerning the business, properties and personnel of Morgan records as Parent Agent may reasonably request.
(b) Parent shallAgent and each Lender shall use reasonable, xxxx xeasonable notice good faith efforts to maintain as confidential any information (other than any public information) supplied to them hereunder or under any other Loan Document (the "Confidential Information") on the following terms and subject to applicable Laws relating to the exchange of information, afford Morgan and its officers, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan conditions: (i) Agent and each Lender may disclose any Confidential Information (x) only on a copy confidential and "need-to-know" basis to Agent's or such Lender's outside agents and consultants (including attorneys and accountants); (y) to directors, officers and employees of each material report, schedule and other docxxxxx filed by it pursuant to federal Agent or state securities or banking Lawssuch Lender, and (z) to other employees of other Affiliates or Subsidiaries of Agent or such Lender, but only on a confidential and "need-to-know" basis; (ii) all Agent or any Lender may release or disclose without liability of any kind any Confidential Information in its possession if such release or disclosure is (w) reasonably believed by it to be compelled by any court decree, subpoena, or other information concerning legal or administrative order or process, provided that Borrower shall be given prior notice of any such release or disclosure, (x) in the business opinion of its counsel, otherwise required by law, (y) in the opinion of its counsel, necessary or properties of Parent as Morgan may reasonably request.
(c) Each of Morgan and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (as well as any other information obtained prior to the date hereof appropriate in connection with the entering into any litigation or other proceeding having its or any of this Agreementits Affiliates as a party thereto or (z) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement assignees or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent participants or potential assignees or participants who agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligationthe provisions of this Section 1.16(b). In no event shall Agent or any Lender or any of their respective Affiliates be liable for any indirect, punitive, exemplary, or consequential damages resulting from any release or disclosure of Confidential Information; and (iii) this Section 1.16(b) relates only to Confidential Information disclosed by Borrower or any of its Subsidiaries to Agent or any Lender. Any disclosure made by Borrower or its Subsidiaries to any Affiliate of Agent or any Lender, or any of their respective divisions or other Subsidiaries shall be outside the scope of this Section 1.16(b) and shall be confidential or not as the party by whom 26 and the Person to whom such disclosures are made may agree. Neither Agent nor any Lender shall be precluded from disclosing or making use of any information (w) which is disclosed with not Confidential Information, (x) of which it was aware or which was in its possession prior to any disclosure to it by Borrower, (y) which subsequently comes into its possession from sources independent of Borrower or Agent and is not subject to an obligation of confidentiality of which Agent or such Lender is aware, or (z) which was or is independently developed by Agent or such Lender. Agent and each Lender shall use the prior written approval same standard of care in safeguarding Confidential Information as it employs in protecting its own proprietary information which it desires not to disseminate or publish. Agent and each Lender shall advise any outside agent or consultant receiving any Confidential Information of the party to confidential nature of the material disclosed and the purpose for which it is disclosed, but neither Agent nor any Lender shall be liable for any misappropriation or misuse of such information pertains, (iv) is by such Person other than that occasioned by its own gross negligence or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required wilful misconduct as determined by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any a final nonappealable judgment of a court of competent jurisdiction jurisdiction. Any Confidential Information given to Agent or any Lender shall cease to be restricted or covered by this Section 1.16(b), (i) the date two years after the Termination Date, or (Cii) any inquiry once it has or investigation by any Governmental Authority that is lawfully entitled deemed to require any such disclosure, such party (have entered into the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority public domain or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and become known to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order public or third Persons from a source other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated than through or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents under Agent or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this AgreementLender.
(d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become available.
Appears in 1 contract
Access; Confidentiality. (a) Morgan shall, upon reasonable notice The Company shall (and subject to applicable Laxx xxxating shall cause each of its subsidiaries to)
(a) afford to the exchange of information, afford Parent and its officers, employees, accountants, consultants, counsel, accountants agents and other authorized representativesrepresentatives of Acquiror, such reasonable access to and the right to inspect and observe, during normal business hours throughout during the period prior to the Effective Time to Time, the booksCompany's and its subsidiaries' personnel, records (includingaccountants, without limitation, tax returns and work papers of independent auditors)representatives, properties, personnel books, contracts, insurance policies, commitments and to such records, offices, plants and other information as Parent may reasonably request andfacilities, during such period, it shall furnish (b) make available promptly to Parent Acquiror (i) a copy of each material report, schedule schedule, registration statement and other document filed or received by it the Company's and its subsidiaries during such period pursuant to the requirements of federal or state securities or banking Laws, laws and (ii) all other information concerning the business, properties and personnel (including, without limitation, insurance policies) of Morgan the Company's and its subsidiaries as Parent Acquiror may reasonably request. Acquiror will treat any such information in accordance with the provisions of the letter agreement dated May 22, 1995 between the Company and Acquiror (the "Confidentiality Agreement"). No investigation conducted by Acquiror shall impact any representation or warranty given by the Company to Acquiror hereunder.
(b) Parent shall, xxxx xeasonable notice The Acquiror shall (and subject to applicable Laws relating shall cause each of its subsidiaries to)
(a) afford to the exchange of information, afford Morgan and its officers, employees, accountants, consultants, counsel, accountants agents and othex xxxxorized representativesother representatives of Company, such reasonable access to and the right to inspect and observe, during normal business hours throughout during the period prior to the Effective Time to Time, the Acquiror's and its subsidiaries' personnel, accountants, representatives, properties, books, records contracts, insurance policies, commitments and records, offices, plants and other facilities, (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx b) make available promptly to Morgan Company (i) a copy of each material report, schedule schedule, registration statement and other docxxxxx document filed or received by it the Acquiror's and its subsidiaries during such period pursuant to the requirements of federal or state securities or banking Laws, laws and (ii) all other information concerning the business or business, properties and personnel (including, without limitation, insurance policies) of Parent the Acquiror's and its subsidiaries as Morgan Company may reasonably request.
(c) Each of Morgan and Xxxxxx agrees that it . Company will not, and will cause its repxxxxxxatives not to, use treat any such information obtained pursuant to this Section 6.05 (as well as any other information obtained prior to the date hereof in connection accordance with the entering into of this Agreement) for any purpose unrelated to the consummation provisions of the transactions contemplated by this Agreement. Except for letter agreement dated May 22, 1995 between the use of information in connection with the Registration Statement described in Section 6.03 hereof Company and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party Acquiror (the "Required PartyConfidentiality Agreement") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same). No investigation conducted by either party of Company shall impact any representation or warranty given by the business and affairs of the other shall affect or be deemed Acquiror to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this AgreementCompany hereunder.
(d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become available.
Appears in 1 contract
Samples: Merger Agreement (Home Health Corp of America Inc \Pa\)
Access; Confidentiality. (a) Morgan Between the date of this Agreement and the Closing Date, Seller shall, upon reasonable notice and subject to applicable Laxx xxxating to shall cause the exchange of informationCompany to, afford Parent Buyer full and its officersfree access, employees, counsel, accountants and other authorized representatives, such access at all reasonable times during normal business hours throughout the period prior hours, to the Effective Time to the bookspersonnel, records (including, without limitation, tax returns and work papers of independent auditors)premises, properties, personnel Applicable Contracts, books and to such other information as Parent may reasonably request andrecords, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, documents and (ii) all other information concerning data of the business, properties Division and personnel of Morgan the Company as Parent Buyer may reasonably request. The foregoing shall not require Seller or the Company to permit any inspection, or to disclose any information, that in their reasonable judgment is reasonably likely to result in the disclosure of any trade secrets of third parties or violate any of their obligations with respect to confidentiality if Seller or the Company, as the case may be, shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure. All requests for information made pursuant to this Section 5.2(a) shall be directed to an executive officer of Seller.
(b) Parent Following the Closing, Buyer shall, xxxx xeasonable notice and subject shall cause the Company and any of Buyer's other Affiliates to applicable Laws relating to the exchange of information(i) afford Seller full and free access, afford Morgan and its officersupon reasonable notice, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior hours, to the Effective Time to the bookspersonnel, records (includingpremises, without limitationproperties, tax returns Applicable Contracts, books and work papers of independent auditors)records, and to other documents and data of the Division and the Company as Seller shall reasonably request, (ii) furnish Seller with copies of all such Applicable Contracts, books and records, and other information existing documents and data as Morgan Seller may reasonably request andand (iii) furnish Seller with such additional financial, during such periodoperating, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it data and information as Seller may reasonably request in order for Seller to prepare its financial statements, Tax Returns and other documents and reports Seller or any of its Affiliates are required to file with Governmental Entities or reasonably require in connection with any Action against, or tax examination of, Seller or any of its Affiliates. The foregoing shall not require Buyer, the Company or any of Buyer's other Affiliates to permit any inspection, or to disclose any information, that in their reasonable judgment is reasonably likely to result in the disclosure of any trade secrets of third parties or violate any of their obligations with respect to confidentiality if Buyer, the Company or Buyer's other Affiliates shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure. All requests for information made pursuant to federal or state securities or banking Laws, and (iithis Section 5.2(b) all other information concerning the business or properties shall be directed to an executive officer of Parent as Morgan may reasonably requestBuyer.
(c) Each of Morgan Seller hereby covenants and Xxxxxx agrees that from and after the Closing Date it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order ensure that its Representatives, affiliates, successors and assigns (including assignees of any portion of its other businesses) hold in confidence and prevent the disclosure to any person or other reliable assurance that confidential treatment will be accorded use by any Person of any information and documents concerning the Business and the Transferred Assets, including but not limited to the information described compiled in this Section 6.05 so furnishedthe data room (other than pursuant to a court order or subpoena or with respect to Tax Returns and other reports or information required by law to be disclosed), except to authorized representatives of Buyer. In Seller agrees that it shall not and it shall cause its Representatives, affiliates, successors and assigns not to use any confidential documents or information for any purpose other than the preparation of Seller's financial statements, Tax Returns or other documents or reports required to be filed by Seller with any Governmental Entities or reasonably required in connection with any Action against, or examination of Seller or its Affiliates. The parties agree that irreparable damage may occur in the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party any of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date 36 41 provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that Buyer shall be entitled to seek an injunction or injunctions to prevent breaches of this paragraph and to enforce specifically the Effective Timeterms and provisions of this paragraph in any court, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced without having to prove irreparable damages this being in the ordinary and usual course of business as the same shall become availableaddition to any other remedy to which it is entitled at law or equity.
Appears in 1 contract
Samples: Purchase Agreement (Element K Corp)
Access; Confidentiality. (a) Morgan Borrower shall, upon reasonable notice and subject to applicable Laxx xxxating to the exchange of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such : (i) provide access during normal business hours throughout the period prior to Agent and any of its officers, employees and agents, as frequently as Agent determines to be appropriate, upon reasonable advance notice (unless a Default shall have occurred and be continuing, in which event no notice shall be required and Agent and its officers, employees and agents shall have access at any and all times), to the Effective Time properties and facilities of Borrower or any of its Subsidiaries; (ii) permit Agent and any of its officers, employees and agents to inspect, audit and make extracts from all of Borrower's and its Subsidiaries' records, files and books of account; and (iii) subject to the terms of the Fee Letter, permit Agent and any of its officers, employees and agents on behalf of Lenders, upon prior notice to Borrower (unless a Default shall have occurred and be continuing, in which event no notice shall be required and Agent and its officers, employees and agents shall be permitted to inspect, audit and make such extracts at any and all times) to conduct audits to inspect, review and evaluate the Collateral, and Borrower agrees to render to Agent at Borrower's cost and expense, such clerical and other assistance as may be reasonably requested with regard thereto; provided, however, that Borrower shall be permitted to have a representative of Borrower present during any such visit, inspection or audit by Agent or Agent's officers, employees or agents, it being understood that Borrower's right to have a representative present shall not result in a delay of any such visit, inspection or audit. Borrower shall, and shall cause each of its Subsidiaries to, make available to Agent and its counsel, as quickly as practicable under the circumstances, originals or copies of all books, records, board minutes, contracts, insurance policies, environmental audits, business plans, files, financial statements (actual and pro forma), filings with federal, state and local regulatory agencies, and other instruments and documents which Agent may reasonably request. Borrower shall deliver any document or instrument reasonably necessary for Agent, as it may from time to time reasonably request, to obtain records (from any service bureau or other Person which maintains records for Borrower, and shall maintain duplicate records or supporting documentation on media, including, without limitation, tax returns computer tapes and work papers of independent auditors)discs owned by Borrower. Upon notice from Agent, properties, personnel Borrower shall instruct its certified public accountants and to such other information as Parent may reasonably request and, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule its banking and other document filed by it pursuant financial institutions to federal or state securities or banking Laws, make available to Agent such information and (ii) all other information concerning the business, properties and personnel of Morgan records as Parent Agent may reasonably request.
(b) Parent shallAgent and each Lender shall use reasonable, xxxx xeasonable notice good faith efforts to maintain as confidential any information (other than any public information) supplied to them hereunder or under any other Loan Document (the "Confidential Information") on the following terms and subject to applicable Laws relating to the exchange of information, afford Morgan and its officers, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan conditions: (i) Agent and each Lender may disclose any Confidential Information (w) only on a copy confidential and "need-to-know" basis to Agent's or such Lender's outside agents and consultants (including attorneys and accountants), (x) to directors, officers and employees of each material reportAgent or such Lender, schedule (y) to other employees of other Affiliates or Subsidiaries of Agent or such Lender, but only on a confidential and other docxxxxx filed by it pursuant to federal or state securities or banking Laws"need-to-know" basis, and (z) to examiners, auditors and investigators having regulatory authority over Agent or such Lender; (ii) all Agent or any Lender may release or disclose without liability of any kind any Confidential Information in its possession if such release or disclosure is (w) reasonably believed by it to be compelled by any court decree, subpoena, or other information concerning legal or administrative order or process, provided that Borrower shall be given prior notice of any such release or disclosure, (x) on the business advice of its counsel, otherwise required by law, (y) on the advice of its counsel, necessary or properties of Parent as Morgan may reasonably request.
(c) Each of Morgan and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (as well as any other information obtained prior to the date hereof appropriate in connection with the entering into any litigation or other proceeding having its or any of this Agreementits Affiliates as a party thereto or (z) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement assignees or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent participants or potential assignees or participants who agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligationthe provisions of this Section 1.16(b). In no event shall Agent or any Lender or any of their respective Affiliates be liable for any indirect, punitive, exemplary, or consequential damages resulting from any release or disclosure of Confidential Information; and (iii) this Section 1.16(b) relates only to Confidential Information disclosed by Borrower or any of its Subsidiaries to Agent or any Lender. Any disclosure made by Borrower or its Subsidiaries to any Affiliate of Agent or any Lender, or any of their respective divisions or other Subsidiaries shall be outside the scope of this Section 1.16(b) and shall be confidential or not as the party by whom and the Person to whom such disclosures are made may agree. Neither Agent nor any Lender shall be precluded from disclosing or making use of any information (w) which is disclosed with not Confidential Information, (x) of which it was aware or which was in its possession prior to any disclosure to it by Borrower, (y) which subsequently comes into its possession from sources independent of Borrower or Agent and is not subject to an obligation of confidentiality of which Agent or such Lender is aware, or (z) which was or is independently developed by Agent or such Lender. Agent and each Lender shall use the prior written approval same standard of care in safeguarding Confidential Information as it employs in protecting its own proprietary information which it desires not to disseminate or publish. Agent and each Lender shall advise any outside agent or consultant receiving any Confidential Information of the party to confidential nature of the material disclosed and the purpose for which it is disclosed, but neither Agent nor any Lender shall be liable for any misappropriation or misuse of such information pertains, (iv) is by such Person other than that occasioned by its own gross negligence or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required wilful misconduct as determined by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any a final nonappealable judgment of a court of competent jurisdiction jurisdiction. Any Confidential Information given to Agent or any Lender shall cease to be restricted or covered by this Section 1.16(b), (i) the date two years after the Termination Date, or (Cii) any inquiry once it has or investigation by any Governmental Authority that is lawfully entitled deemed to require any such disclosure, such party (have entered into the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority public domain or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and become known to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order public or third Persons from a source other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated than through or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents under Agent or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this AgreementLender.
(d) During the period from the date of this Agreement to the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become available.
Appears in 1 contract
Access; Confidentiality. (a) Morgan Between the date of this Agreement and the Closing Date, Seller shall, upon reasonable notice and subject to applicable Laxx xxxating to shall cause the exchange of informationCompany to, afford Parent Buyer full and its officersfree access, employees, counsel, accountants and other authorized representatives, such access at all reasonable times during normal business hours throughout the period prior hours, to the Effective Time to the bookspersonnel, records (including, without limitation, tax returns and work papers of independent auditors)premises, properties, personnel Applicable Contracts, books and to such other information as Parent may reasonably request andrecords, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, documents and (ii) all other information concerning data of the business, properties Division and personnel of Morgan the Company as Parent Buyer may reasonably request. The foregoing shall not require Seller or the Company to permit any inspection, or to disclose any information, that in their reasonable judgment is reasonably likely to result in the disclosure of any trade secrets of third parties or violate any of their obligations with respect to confidentiality if Seller or the Company, as the case may be, shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure. All requests for information made pursuant to this Section 5.2(a) shall be directed to an executive officer of Seller.
(b) Parent Following the Closing, Buyer shall, xxxx xeasonable notice and subject shall cause the Company and any of Buyer's other Affiliates to applicable Laws relating to the exchange of information(i) afford Seller full and free access, afford Morgan and its officersupon reasonable notice, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior hours, to the Effective Time to the bookspersonnel, records (includingpremises, without limitationproperties, tax returns Applicable Contracts, books and work papers of independent auditors)records, and to other documents and data of the Division and the Company as Seller shall reasonably request, (ii) furnish Seller with copies of all such Applicable Contracts, books and records, and other information existing documents and data as Morgan Seller may reasonably request andand (iii) furnish Seller with such additional financial, during such periodoperating, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it data and information as Seller may reasonably request in order for Seller to prepare its financial statements, Tax Returns and other documents and reports Seller or any of its Affiliates are required to file with Governmental Entities or reasonably require in connection with any Action against, or tax examination of, Seller or any of its Affiliates. The foregoing shall not require Buyer, the Company or any of Buyer's other Affiliates to permit any inspection, or to disclose any information, that in their reasonable judgment is reasonably likely to result in the disclosure of any trade secrets of third parties or violate any of their obligations with respect to confidentiality if Buyer, the Company or Buyer's other Affiliates shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure. All requests for information made pursuant to federal or state securities or banking Laws, and (iithis Section 5.2(b) all other information concerning the business or properties shall be directed to an executive officer of Parent as Morgan may reasonably requestBuyer.
(c) Each of Morgan Seller hereby covenants and Xxxxxx agrees that from and after the Closing Date it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order ensure that its Representatives, affiliates, successors and assigns (including assignees of any portion of its other businesses) hold in confidence and prevent the disclosure to any person or other reliable assurance that confidential treatment will be accorded use by any Person of any information and documents concerning the Business and the Transferred Assets, including but not limited to the information described compiled in this Section 6.05 so furnishedthe data room (other than pursuant to a court order or subpoena or with respect to Tax Returns and other reports or information required by law to be disclosed), except to authorized representatives of Buyer. In Seller agrees that it shall not and it shall cause its Representatives, affiliates, successors and assigns not to use any confidential documents or information for any purpose other than the preparation of Seller's financial statements, Tax Returns or other documents or reports required to be filed by Seller with any Governmental Entities or reasonably required in connection with any Action against, or examination of Seller or its Affiliates. The parties agree that irreparable damage may occur in the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party any of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that Buyer shall be entitled to seek an injunction or injunctions to prevent breaches of this paragraph and to enforce specifically the Effective Timeterms and provisions of this paragraph in any court, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced without having to prove irreparable damages, this being in the ordinary and usual course of business as the same shall become availableaddition to any other remedy to which it is entitled at law or equity.
Appears in 1 contract
Samples: Purchase Agreement (Ziff Davis Inc)
Access; Confidentiality. (a) Morgan shall, upon reasonable notice and subject to applicable Laxx xxxating to the exchange of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), properties, personnel and to such other information as Parent may reasonably request and, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, and (ii) all other information concerning the business, properties and personnel of Morgan as Parent may reasonably request.
(b) Parent shall, xxxx xeasonable notice and subject to applicable Laws relating to the exchange of information, afford Morgan and its officers, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy of each material report, schedule and other docxxxxx filed by it pursuant to federal or state securities or banking Laws, and (ii) all other information concerning the business or properties of Parent as Morgan may reasonably request.
(c) Each of Morgan and Xxxxxx agrees that it will not, and will cause its repxxxxxxatives not to, use any information obtained pursuant to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date of this Agreement to the Effective TimeClosing or the prior termination of this Agreement pursuant to Section 8.1, Morgan Buyer and its counsel, accountants, financial advisors, potential financial sources, employees, agents and other authorized representatives (the “Buyer Representatives”) shall promptly furnish Parent be given reasonable access, during normal business hours and upon reasonable prior notice, to the facilities, properties, personnel, books and records (including Tax records) of Seller (with copies respect to the Rangeland Entities or the COLT Business) and the Rangeland Entities for the purpose of conducting an investigation of the COLT Business, the Rangeland Entities and their financial condition, operations and status, and the Assets; provided, however, that (i) Buyer and the Buyer Representatives will not request information, or otherwise contact, any officer, director or employee of Seller or any of Seller’s Affiliates without arranging such contact with Seller and (ii) such investigation shall be conducted in a manner that does not unreasonably interfere with the normal operations of the Rangeland Entities. Buyer will not request information from, or otherwise contact, any vendor, supplier or customer of or to the Rangeland Entities or the COLT Business without the prior written consent of Seller. Seller will, and will cause the Rangeland Entities to, cause their respective counsel, accountants, financial advisors, employees, agents and other authorized representatives (the “Seller Representatives”) to be available to Buyer and the Buyer Representatives at all monthly reasonable times, during normal business hours and xxxer interim financial statements produced upon reasonable prior notice, for such purposes. Seller shall have the right to have a Seller Representative present at all times during any such inspections, interviews and examinations. Any environmental property assessment conducted by Buyer shall be limited to Phase I only. Buyer shall not be entitled to conduct additional Phase II environmental property assessments without Seller’s prior written consent, which may be withheld in Seller’s sole discretion. Any sampling, boring, drilling or other invasive investigation activities shall be considered “Phase II” activities.
(b) (i) From the date of this Agreement until Closing and, if applicable, for 12 months after termination of this Agreement, Buyer shall, and shall cause the Buyer Representatives to, hold in confidence all information provided to Buyer or the Buyer Representatives pursuant to this Section 5.8 on terms and subject to conditions equivalent to those contained in the ordinary Confidentiality Agreement, and usual course (ii) for 12 months after Closing, Seller shall, and shall cause its Affiliates to, not make disclosure to third parties of any Confidential Information (as defined below), except with the prior consent of Buyer or as required by applicable Law. Notwithstanding the foregoing, the obligations set forth in this Section 5.8(b)(ii) shall not (x) apply to any Person who executes the Non-Compete Agreement attached as Exhibit C to this Agreement; or (y) restrict Seller, the Seller Representatives or Seller’s Affiliates from using any Confidential Information in connection with the development, organization, financing, engineering, construction or commercial operation of any business as the same shall become available.or facility that is not a Competitive Activity as
Appears in 1 contract
Access; Confidentiality. (ai) Morgan shallAfter the date hereof until the expiration of the Loan Term, the Borrower Parties shall (i) afford the MPT Parties and their authorized representatives full and complete access to the employees, medical staff, and other agents and representatives of the Borrower Parties relating to the Business and the Hospital and during normal working hours to all books, records, offices and other facilities of the Borrower Parties relating to the Business and the Hospital, (ii) permit the MPT Parties to make such inspections and to make copies of such books and records as they may reasonably require and (iii) furnish the MPT Parties with such financial and operating data and other information related to the Business, the Hospital or the Borrower Parties as the MPT Parties may from time to time reasonably request following reasonable notice to the Borrower Parties by the MPT Parties. The MPT Parties and their authorized representatives shall conduct all such inspections under the supervision of personnel of the Borrower Parties in a manner that will minimize disruptions to the business and operations of the Borrower Parties and in a manner as to maintain the confidentiality of this Agreement.
(ii) The MPT Parties and their authorized representatives (including their designated engineer, architects, surveyors and/or consultants) may, upon reasonable notice and subject at any time enter into and upon all or any portion of the Real Property in order to applicable Laxx xxxating to investigate and assess, as the exchange MPT Parties deem necessary or appropriate in their sole and absolute discretion, the condition (including the structural and environmental condition) of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records Collateral (including, without limitation, tax returns the Improvements). The Borrower Parties shall cooperate with the MPT Parties and work papers their authorized representatives in conducting such investigation, shall allow, the MPT Parties and their authorized representatives full access to the Collateral, together with full permission to conduct such investigation, and shall provide to the MPT Parties and their authorized representatives all information maintained by the Borrower Parties and related to the condition of independent auditors)the Collateral, propertiesincluding the Real Property, personnel 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 Borrower Parties or any of their engineers, consultants or agents and all other information relating to environmental matters in respect of their properties and businesses.
(iii) As a condition to the parties furnishing one another with their respective Confidential Information, each party hereto agrees to treat the other party's Confidential Information (whether prepared by the disclosing party, its advisors or otherwise) in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions herein set forth. The parties hereby agree that, except as otherwise set forth herein, the other parties' Confidential Information, and the fact that the parties are parties to this Agreement, will be kept confidential by the parties and will be used by such party solely for the purpose of fulfilling the obligations of such parties to the other information as Parent may reasonably request and, during such period, it shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it parties pursuant to the Loan document; provided, however, that any Confidential Information may be disclosed to the following: (1) the parties' respective agents or representatives who need to know the Confidential Information for the purpose of evaluating or providing services in connection with the transactions contemplated in the Loan Documents (it being understood (A) that such agents and representatives shall be informed by such party of the confidential nature of the other party's Confidential Information, (B) such agents and representatives shall be directed by such party to treat the other party's Confidential Information confidentially in accordance with the terms of this Agreement and (C) such party shall be liable for any breach of confidentiality committed by such agents or representatives) and (2) the MPT Parties' prospective investors in relation to or in connection with any private placement or public offering of the MPT Parties' securities, and (3) any person or entity in which disclosure is required by federal or state securities or banking Laws, and (ii) all other information concerning the business, properties and personnel of Morgan as Parent may reasonably requestlaws.
(biv) Parent shallExcept with the prior written consent of the other parties and except for the permitted disclosures described in the immediately preceding paragraph, xxxx xeasonable notice and subject to applicable Laws relating to the exchange of information, afford Morgan and its officers, employees, counsel, accountants and othex xxxxorized representatives, such access during normal business hours throughout the period prior to any public announcement concerning the Effective Time to transaction contemplated in the booksLoan Documents and business relationship between the MPT Parties and the Borrower Parties, records (including, without limitation, tax returns and work papers of independent auditors)neither party will, and will direct its agents and representatives not to, disclose to such other information any person either the fact that a business relationship between the MPT Parties and the Borrower Parties has commenced. If as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy result of each material report, schedule and other docxxxxx filed by it pursuant to federal or state securities laws, any party is required by law, in the reasonable opinion of such party's legal counsel, to disclose the business relationship between the MPT Parties and the Borrower Parties or banking Lawsany of the proposed or effective terms of such business relationship, such party shall, to the extent reasonably practical, provide prior notice thereto to the other parties, and (ii) all shall consult with the other information parties concerning the business or properties language, form and substance of Parent as Morgan may reasonably requestany disclosure of the other parties' Confidential Information.
(cv) In the event that any party hereto, or such party's representatives or agents, are requested or required in a judicial, administrative or governmental proceeding to disclose any other party's Confidential Information, such party will cooperate with the other party and provide it with prompt notice of such request(s) so that the other party may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, a party or its representatives or agents are nonetheless, in the opinion of such party's legal counsel, legally required to disclose the other party's Confidential Information to any tribunal or else stand liable for contempt or suffer other censure or penalty, such party may disclose the other party's Confidential Information to such tribunal without liability hereunder.
(vi) Each of Morgan the parties shall, upon request of any other party, return or destroy all of such other party's written Confidential Information and Xxxxxx agrees all documents, memoranda, notes and other writings whatsoever prepared by such party or its representatives or agents based on the other party's Confidential Information. Neither this letter nor the disclosure of any party's Confidential Information to the other parties grants or confers upon the other parties any license, ownership right or other right in or to such Confidential Information.
(vii) Notwithstanding anything to the contrary contained herein, 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 will not, and will cause its repxxxxxxatives not to, use has no proprietary or exclusive rights to any information obtained pursuant tax matter or tax idea related to this Section 6.05 (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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order The preceding sentence is intended to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such ensure that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to not be consummatedtreated 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 contained herein, each party shall promptly cause all copies of documents in the Schedules hereto or extracts thereof containing Information and data as to another party hereto to be returned delivered to the party that furnished MPT Parties or its authorized representatives pursuant hereto shall be subject to the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Agreement.
(d) During the period from the date confidentiality provisions of this Agreement to until the Effective Time, Morgan shall promptly furnish Parent with copies of all monthly and xxxer interim financial statements produced in the ordinary and usual course of business as the same shall become availableClosing.
Appears in 1 contract
Access; Confidentiality. (a) Morgan shallFrom the date hereof until the Transfer Date, the Seller shall permit the Acquiror and its representatives to have reasonable access, during regular business hours and upon reasonable notice and subject advance notice, to applicable Laxx xxxating to all the exchange of information, afford Parent and its officers, employees, counsel, accountants and other authorized representatives, such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors)personnel, properties, personnel Contracts relating to Gestiva, the Purchased Assets or the Assumed Liabilities, Tax Returns, the Gestiva Books and to such other information as Parent may reasonably request andRecords, during such periodthe Assumed Liabilities or the Gestiva Business, it and the Seller shall furnish promptly to Parent (i) a copy of each material report, schedule and other document filed by it pursuant to federal or state securities or banking Laws, and (ii) all other the Acquiror such information in the Seller's possession concerning the businessPurchased Assets, properties and personnel of Morgan the Assumed Liabilities or the Gestiva Business as Parent 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 Gestiva Business. The Seller shall instruct its respective employees, counsel and financial advisors to provide reasonable cooperation to the Acquiror in its investigation of the Gestiva Business.
(b) Parent shallFrom and after the Closing, xxxx xeasonable notice the Seller shall implement procedures to keep confidential, and subject cause its officers, directors, employees, representatives, agents and advisors to applicable Laws keep confidential, all information relating to the exchange Purchased Assets, Assumed Liabilities and Gestiva Business, except as required by Law and except for information which was in the public domain or was publicly known prior to the Closing or which becomes generally available to the public after the Closing Date other than as a result of information, afford Morgan and a disclosure by the Seller or its officers, directors, employees, counsel, accountants and othex xxxxorized representatives, agents and advisors. The Seller shall not disseminate any such information other than to those employees of the Seller who have a business need to access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), and to such other information as Morgan may reasonably request and, during such period, it shall fxxxxxx promptly to Morgan (i) a copy in connection with the preparation of each material reportthe Seller's accounting records, schedule and other docxxxxx filed by it pursuant to federal or state securities or banking Laws, and (ii) in connection with the preparation of any Tax Returns or with any Tax audits or (iii) in connection with any suit, claim, action, proceeding or investigation relating to the Purchased Assets, the Assumed Liabilities or the Gestiva Business. The Seller shall not use or cause or permit its officers, directors, employees, representatives and advisors to use any such information after the Closing for any purpose whatsoever, other than in implementation of this Agreement. 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 enforce the Seller's rights with respect to the use and maintenance of confidential information relating to the Gestiva Business under all confidentiality agreements between the Seller and any other third party. The Seller shall not waive or release its rights under such confidentiality agreements with respect to the use and maintenance of such confidential information concerning with respect to the business or properties of Parent as Morgan may reasonably requestGestiva Business.
(c) Each of Morgan Between the date hereof and Xxxxxx agrees that it will notthe Transfer Date, and will cause its repxxxxxxatives not to, use any information obtained disclosed to the Acquiror pursuant to this Section 6.05 Agreement (including in the Seller Disclosure Schedule) shall be held as Confidential Information (as well as any other information obtained prior defined in the Confidentiality Agreement) and shall be subject 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. Except for the use of information in connection with the Registration Statement described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the "Information") received by each of Morgan and Parent, pursuant to the terms of this Agreement shall xx xxxt in strictest confidence; provided, however, that, subsequent to the filing of the Registration Statement with the SEC, this Section 6.05 shall not apply to information included in the Registration Statement or to be included in the Proxy Statement/Prospectus to be sent to 44 the shareholders of Morgan and Parent under Section 6.03. Morgan and Parent agree thax xxx Information will be used only fox xxx purpose of completing the transactions contemplated by this Agreement. Subject to the requirements of Law, each party shall keep confidential, and shall cause its representatives to keep confidential, all Information and documents obtained (as well as any other Information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such Information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the party to which such information pertains, (iv) is or becomes readily ascertainable from published information or trade sources or (v) is such that such party is required by Law or court order to disclose. If either party is required or reasonably believes that it is required to disclose any information described in this Section 6.05(c) by (A) Law, (B) any court of competent jurisdiction or (C) any inquiry or investigation by any Governmental Authority that is lawfully entitled to require any such disclosure, such party (the "Required Party") shall, so far as it is lawful, notify the other party of such required disclosure on the same day that the Required Party (1) is notified of a request for such disclosure from the relevant Governmental Authority or (2) determines that such disclosure is required, whichever is earlier. Immediately thereafter, and to the extent practical on the same day, and subject to applicable Laws, the parties shall discuss and use their reasonable best efforts to agree as to the mandatory nature, the required timing and the required content of such disclosure. The Required Party shall furnish only that portion of the information described in this Section 6.05 that is legally required to be disclosed and shall exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the information described in this Section 6.05 so furnished. In the event that this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing Information and data as to another party hereto to be returned to the party that furnished the same. No investigation by either party of the business and affairs of the other shall affect or be deemed to modify or waive any representation, warranty, covenant or agreement in this Agreement, or the conditions to either party's obligation to consummate the transactions contemplated by this Confidentiality Agreement.
(d) During Following the Transfer Date, for so long as such information is retained by the Seller (which shall be for a period from of at least five (5) years), the date of this Agreement Seller shall permit the Acquiror and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice, to the Effective TimeSeller and its books, Morgan records and personnel solely to the extent relating to the Purchased Assets, the Assumed Liabilities or the Gestiva Business, to the extent such access may reasonably be required: (i) in connection with the preparation of the Acquiror's accounting records or with any audits thereof, (ii) in connection with any suit, claim, action, proceeding or investigation relating to the Purchased Assets, the Assumed Liabilities or the Gestiva Business or (iii) in connection with any required regulatory filing relating to the Purchased Assets, the Assumed Liabilities or the Gestiva Business; provided that the Acquiror shall reimburse the Seller promptly furnish Parent for all reasonable and necessary out-of-pocket costs and expenses incurred by the Seller in connection with copies 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 all monthly and xxxer interim financial statements produced documents or information, in the ordinary good faith opinion of the Seller's counsel, would reasonably be expected to result in a violation of antitrust laws and usual course (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 books and records that do not relate to the Purchased Assets, the Assumed Liabilities or the Gestiva Business.
(e) Following the Transfer Date, for so long as such information is retained by Acquiror (which shall be for a period of at least five (5) 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 Gestiva Books and Records and the employees of the Acquiror or its Subsidiaries, to the extent that such access may reasonably be required: (i) in connection with the preparation of the Seller's accounting records or with any audits thereof, (ii) in connection with any suit, claim, action, proceeding or investigation with an adverse third party relating to the Purchased Assets, the Assumed Liabilities or the Gestiva Business or (iii) in connection with any required regulatory filing relating to the Purchased Assets the Assumed Liabilities or the Gestiva 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. 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 a violation of antitrust laws and (II) the Acquiror designates such information as "outside counsel and retained experts only" and discloses such information to the same 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 become availableinform the Seller as to the general nature of what is being withheld. The Acquiror may redact such portions of such Gestiva Books and Records that do not relate to the Purchased Assets, the Assumed Liabilities or the Gestiva Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)