Common use of Access; Consultation Clause in Contracts

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 4 contracts

Samples: Merger Agreement, Merger Agreement (Twenty-First Century Fox, Inc.), Merger Agreement (Walt Disney Co/)

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Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company and Parent shall, and shall cause each of its Subsidiaries to, afford Parentthe other party’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s other party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each of the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 6.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.7 to the extent that, that (i) in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a6.7(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.7 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.7 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.7 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company and Parent shall give prompt notice to one another of any event, occurrence, fact, condition, change, effect, circumstance development or development effect that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied).

Appears in 4 contracts

Samples: Voting Agreement (Newhouse Broadcasting Corp), Voting Agreement (Discovery Communications, Inc.), Merger Agreement (Scripps Networks Interactive, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company and Parent shall, and shall cause each of its Subsidiaries to, afford Parentthe other Party’s Representatives reasonable accessaccess (at the requesting Party’s cost) under the supervision of appropriate personnel of the other Party, during normal business hours during the period prior to the First Effective Time, to the Company’s other Party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each of the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 5.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection testing or to disclose any information pursuant to this Section 5.07 5.7 to the extent that, that (i) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company such Party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partyParty, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a5.7(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyParty. All requests for information made pursuant to this Section 5.07 5.7 shall be directed in writing to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 4 contracts

Samples: Merger Agreement (Ayala Pharmaceuticals, Inc.), Merger Agreement (Advaxis, Inc.), Merger Agreement (Advaxis, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Wax Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 4 contracts

Samples: Agreement and Plan of Merger (Fox Corp), Amended and Restated Agreement and Plan of Merger (New Fox, Inc.), Agreement and Plan of Merger (Walt Disney Co/)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Lawappli cable law, the Company shall, and SBC each shall (and shall cause its Subsidiaries to) afford the other's and the other's Subsidiaries' employees, afford Parent’s Representatives agents and representatives (including any investment banker, attorney or accountant retained by the other or any of the other's Subsidiaries)(such officers, directors, employees, agents and representatives being referred to in this Agreement, with respect to the Company or SBC, as the context requires, as such party's "Representatives") reasonable access, during normal business hours during throughout the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, contracts and records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, each shall (and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business or the Transactions its business, properties and personnel as may reasonably be requested by Parent; requested, provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company Company, SBC or Parent; Merger Sub hereunder, and provided, further, that the foregoing shall not require neither the Company nor Parent or SBC to permit any invasive environmental sampling or any inspection inspection, or to disclose any information pursuant to this Section 5.07 to the extent thatinformation, that in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or SBC, as the case may be, would violate applicable law or any of its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject obligations with respect to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss disclosure of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) any trade secrets of this Section 5.07(a), Parent third parties if the Company or the CompanySBC, as applicablethe case may be, shall use its commercially have used all reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person SBC, as may be designated by any such executive officer or (y) in the case of a request to Parentmay be, an executive officer of Parent or such Person as may be designated by any such executive officer, as the case may be. All information provided pursuant to this Section 6.6 shall be governed by the terms of the Confidentiality Agreement. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject Subject to the Confidentiality Agreement. To Agreement and to Section 6.16, from the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject date hereof to the attorney-client privilegeEffective Time, work product doctrine or any SBC and the Company agree to consult with each other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have on a commonality of interest regular basis on a schedule to be agreed with respect regard to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrinerespective operations. (ic) Each of From the date hereof to the Effective Time, the Company and Parent shall give prompt notice agrees to one another notify SBC in advance of any change, effect, circumstance issuance by the Company or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or any of its Subsidiaries of any reasonably likely failure of any condition to Parent’s long-term debt or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedpreferred stock.

Appears in 3 contracts

Samples: Merger Agreement (SBC Communications Inc), Merger Agreement (Southern New England Telephone Co), Merger Agreement (SBC Communications Inc)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (Ii) in the case of Parent, furnish promptly to the Company information concerning regarding the Transactions matters set forth in Section 6.6(a) of the Parent Disclosure Letter as may be reasonably requested by Company, the Company and (IIii) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6 to the extent that, that (i) in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Notwithstanding any other provision of this agreement, (i) neither the Company nor Parent shall disclose any information to the other where doing so would violate the Anti-Collusion Rules, (ii) the Company shall not disclose to Parent any information about its WPCH-TV television broadcasting business, and (iii) neither the Company nor Parent shall disclose to the other any information about its participation in FCC Auction 1000, unless, in the case of clauses (ii) and (iii), outside counsel to both the Company and Parent agree that such information may be exchanged consistent with the Anti-Collusion Rules. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b7.2(b) or Section 6.03(b7.3(b) to be satisfied. (d) The Company shall use its reasonable best efforts to deliver to Parent, within 60 days after the date of this Agreement, a complete list of the material registered U.S. Intellectual Property of the Company and its Subsidiaries.

Appears in 3 contracts

Samples: Merger Agreement, Merger Agreement (Time Warner Inc.), Merger Agreement (At&t Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company each of Iris and Meadow shall, and shall cause each of its Subsidiaries to, afford Parentthe other Party’s Representatives reasonable accessaccess (at the requesting Party’s cost) under the supervision of appropriate personnel of the other Party, during normal business hours during the period prior to the First Effective Time, to the Company’s other Party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company each of Iris and Parent Meadow shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 5.7 shall affect or be deemed to modify any representation or warranty made by the Company Iris or ParentMeadow; and provided, further, further that the foregoing shall require neither the Company Iris nor Parent Meadow to permit any invasive environmental sampling or any inspection testing or to disclose any information pursuant to this Section 5.07 5.7 to the extent that, that (a) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company such Party or its Subsidiaries to restrict or prohibit access to any such properties or information, (iib) in the reasonable good faith judgment of such partyParty, the information is subject to confidentiality obligations to a third party or (iiic) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (ia) through (iiic) of this Section 5.07(a)5.7, Parent Meadow or the CompanyIris, as applicable, shall use its commercially reasonable efforts to (1i) obtain the required consent of any such third party to provide such inspection or disclosure, (2ii) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent Meadow and the Company Iris and (3iii) in the case of clauses (ia) and (iiic), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyParty. All requests for information made pursuant to this Section 5.07 5.7 shall be directed in writing to (x) in the case of a request to the Company, an executive officer of the Company Iris or such Person Meadow, as may be designated by any such executive officer or (y) in the case of a request to Parentapplicable, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) . Each of Parent and the Company, as Party shall take reasonable steps to ensure that any information it deems advisable and necessary, may reasonably designate competitively sensitive material provided to obtains regarding the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged Party pursuant to this Section 5.07 5.7 shall be subject to the Confidentiality Agreement. To the extent that any used solely in connection with, and in furtherance of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigationseffecting, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrineContemplated Transactions. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 3 contracts

Samples: Merger Agreement (Infinity Pharmaceuticals, Inc.), Agreement and Plan of Merger (MEI Pharma, Inc.), Merger Agreement (Infinity Pharmaceuticals, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (Ix) in the case of Parent, furnish promptly to the Company information concerning regarding the Transactions matters set forth in Section 6.6(a) of the Parent Disclosure Letter as may reasonably be reasonably requested by Company, and (IIy) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of their respective Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentrequested; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall neither require neither the Company nor Parent to permit any invasive environmental sampling or any inspection inspection, or to disclose any information information, pursuant to this Section 5.07 6.6 to the extent that, that (i) in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a)6.6, Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit utilize the disclosure procedures of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary their existing joint defense agreement with respect to any information to be so provided, or implement such other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person Parent (as may be designated by any such executive officer or (yapplicable) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) . Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material materials and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (ib) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would is reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (ii) or of any other change, effect, circumstance or development which would cause or constitute a breach of any of the representations, warranties or covenants of the Company or Parent (as applicable) contained herein. (c) The Company shall give reasonably prompt notice use its reasonable best efforts to Parent upon obtain from time to time after the receipt date of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided this Agreements reports that any failure would have been Health Status Reports with respect to give notice the Company Satellites if obtained prior to the date hereof and will promptly provide copies of such reports to Parent. For the avoidance of doubt, such reports shall contain the type of information contained in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedHealth Status Reports.

Appears in 2 contracts

Samples: Merger Agreement (Directv), Merger Agreement (At&t Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, shall (and shall cause its Subsidiaries to, ) afford Parent’s Parent and its Representatives reasonable access, during normal business hours during throughout the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, contracts and records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, shall (and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ business, properties and personnel as may reasonably be requested (including any financial statements, schedules or other data relating to the Company prepared by the Company in the ordinary course of business) and shall cooperate with Parent and its Representatives in preparing information and providing other assistance as reasonably requested by Parent and its Representatives in connection with Parent’s information and reports filed with any Governmental Entity or provided to its current or prospective stockholders or other financial counterparties; provided that no investigation pursuant to this Section 5.07 6.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parenthereunder; and provided, further, provided further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection inspection, or to disclose any information pursuant to this Section 5.07 to the extent thatinformation, that in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or would violate any of its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or confidentiality if the Company, as applicable, Company shall use its have used all commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.7 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to ParentCompany, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, the case may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilegebe. All such information that is entitled to protection under shall be governed by the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each terms of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedConfidentiality Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Verifone Systems, Inc.), Merger Agreement (Hypercom Corp)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company Seller shall, and shall cause its Subsidiaries the Transferred Entities to, afford Parent’s the Purchaser and its Representatives reasonable access, during normal business hours during the period prior to the First Effective TimeClosing, to the Company’s and its Subsidiaries’ MCC Business employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions Contracts and, during such period, the Company and Parent Seller shall, and shall cause their respective Subsidiaries its Transferred Entities to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, Purchaser and (II) in the case of the Company, furnish promptly to Parent its Representatives all information concerning the Retained Business or the Transactions MCC Business’ capital stock, business and personnel as may reasonably be requested by Parentthe Purchaser and its Representatives in connection with this Agreement; provided that provided, that, no investigation pursuant to this Section 5.07 4.02(a) shall affect or be deemed to modify any representation or warranty made by the Company or ParentSeller; and provided, further, that the foregoing shall not require neither the Company nor Parent Seller to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 4.02(a), to the extent that, that (i) in the reasonable good faith judgment of such partythe Seller, (i) any applicable Law requires the Company Seller or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partythe Seller, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; and provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a4.02(a), Parent or the Company, as applicable, Seller shall use its commercially reasonable efforts Commercially Reasonable Efforts to (1A) obtain the required consent of any such third party to provide such inspection or disclosure, (2B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent the Seller and the Company Purchaser and (3C) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 4.02(a) shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 4.02(a) shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent Seller or such Person as may be designated by any such executive officer. (b) Each of Parent and the CompanyThe Seller, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other Purchaser or its Representatives as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 4.02(b) shall be subject to the Confidentiality AgreementAgreements. To the extent that any of the information or material furnished pursuant to this Section 5.07 4.02(b) or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Closing, the Seller and the Purchaser shall identify to the Purchaser any actions or practices of the Seller or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall, subject to the Purchaser’s prior written consent, take commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company Seller and Parent the Purchaser shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Purchaser Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parentthe Purchaser’s or the CompanySeller’s obligations to effect the Mergers Closing (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied).

Appears in 2 contracts

Samples: Stock and Asset Purchase Agreement (Magellan Health Inc), Stock and Asset Purchase Agreement (Molina Healthcare, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company and Parent shall, and shall cause each of its Subsidiaries to, afford Parentthe other Party’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s other Party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each of the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 5.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 5.7 to the extent that, that (i) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company such Party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partyParty, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a5.7(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyParty. All requests for information made pursuant to this Section 5.07 5.7 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the partiesParties. All information exchanged pursuant to this Section 5.07 5.7 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 5.7 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties Parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and and, to the fullest extent permitted by Law, shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall shall, to the fullest extent permitted by Law, remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company and Parent shall give prompt notice to one another upon obtaining Knowledge of any change, effect, circumstance or development Effect that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied).

Appears in 2 contracts

Samples: Merger Agreement (Science Applications International Corp), Merger Agreement (Engility Holdings, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company and Parent shall, and shall cause each of its Subsidiaries to, afford Parentthe other Party’s Representatives reasonable accessaccess (at the requesting Party’s cost) under the supervision of appropriate personnel of the other Party, during normal business hours during the period prior to the First Effective Time, to the Company’s other Party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each of the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 5.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection testing or to disclose any information pursuant to this Section 5.07 5.7 to the extent that, that (i) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company such Party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partyParty, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a5.7(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyParty or create material risk of damage or destruction to any material assets or property. Any investigation shall be subject to the reasonable security measures and insurance requirements of the Party allowing such investigation. All requests for information made pursuant to this Section 5.07 5.7 shall be directed in writing to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the partiesParties. All information exchanged pursuant to this Section 5.07 5.7 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 5.7 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties Parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and and, to the fullest extent permitted by Law, shall not, not waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall shall, to the fullest extent permitted by Law, remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company and Parent shall give prompt notice to one another upon obtaining Knowledge of any change, effect, circumstance or development Effect that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract); provided that any no failure to give provide such notice in accordance with shall constitute a breach of this Agreement for the foregoing shall not in and purposes of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b6.2(b) or Section 6.03(b6.3(b) to be satisfied(as applicable).

Appears in 2 contracts

Samples: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Lawlaw, the Company shall, and Keystone each shall (and shall cause its Subsidiaries to) afford the other's and the other's Subsidiaries, afford Parent’s Representatives employees, agents and representatives (including any investment banker, attorney or accountant retained by the other or any of the other's Subsidiaries) (such officers, directors, employees, agents and representatives being referred to in this Agreement, with respect to the Company or Keystone, as the context requires, as such party's "Representatives") reasonable access, during normal business hours during throughout the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, contracts and records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, each shall (and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business or the Transactions its business, properties and personnel as may reasonably be requested by Parent; requested, provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company Company, Keystone or Parent; Merger Sub hereunder, and provided, further, that the foregoing shall not require neither the Company nor Parent or Keystone to permit any invasive environmental sampling or any inspection inspection, or to disclose any information pursuant to this Section 5.07 to the extent thatinformation, that in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or Keystone, as the case may be, would violate applicable law or any of its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject obligations with respect to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss disclosure of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) any trade secrets of this Section 5.07(a), Parent third parties if the Company or the CompanyKeystone, as applicablethe case may be, shall use its commercially have used all reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person Keystone, as may be designated by any such executive officer or (y) in the case of a request to Parentmay be, an executive officer of Parent or such Person as may be designated by any such executive officer, as the case may be. All information provided pursuant to this Section 6.6 shall be governed by the terms of the Confidentiality Agreement between the Company and Keystone dated January 22, 1998 (the "Confidentiality Agreement"). (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject Subject to the Confidentiality Agreement. To , from the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject date hereof to the attorney-client privilegeEffective Time, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand Keystone and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice agree to one another of any change, effect, circumstance or development that would reasonably be expected to result in consult with each other on a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging regular basis on a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) schedule to be satisfiedagreed with regard to their respective operations.

Appears in 2 contracts

Samples: Merger Agreement (Republic Automotive Parts Inc), Merger Agreement (Keystone Automotive Industries Inc)

Access; Consultation. (a) Upon reasonable noticeThe Company shall, and except as may otherwise be required by applicable Lawshall cause each of its Subsidiaries to, afford to Buyer and to Buyer’s Representatives access upon reasonable advance notice and during normal business hours to all their respective properties, assets, books, records, Contracts, Permits, documents, information, executive officers and senior employees (subject to the limitations below with respect to executive officers and senior employees), but only to the extent that such access does not unreasonably interfere with the business or operations of the Company and its Subsidiaries, and the Company shall, and shall cause each of its Subsidiaries to, furnish to Buyer any information concerning its business as Buyer may reasonably request; provided, however, that the Company shall not be required to (or to cause any of its Subsidiaries to) afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts such access or furnish such information to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any doing so is restricted under applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document otherwise would result in the loss of attorney-client privilege; provided, further, privilege (provided that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, Company shall use its commercially reasonable best efforts to (1) obtain the required consent of any allow for such third party to provide such inspection access or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner that does not result in a loss of attorney-client privilege). Following the date of this Agreement and prior to remove the basis for the objectionEffective Time, including by arrangement of appropriate clean room proceduresBuyer may (but shall not be required to), redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request following reasonable notice to the Company, an contact and interview any executive officer or senior employee of the Company (provided that any such request to interview any executive officer or senior employee shall be provided in advance to a designated executive officer of the Company or such Person as may be designated by any and such executive officer or (yshall be entitled to reasonably restrict such access) in and review the case of a request to Parent, an personnel records and such other information concerning any executive officer or senior employee of Parent or the Company as Buyer may reasonably request, provided such Person review is permitted by applicable Law. Except as may be designated required by any such executive officer. (b) Each of Parent and the Companyapplicable Law, as it deems advisable and necessaryjudgment, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” order, writ or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipientdecree, or otherwise as the restriction indicatesBuyer will hold, and be subject will direct its Representatives to hold, any additional confidentiality or joint defense agreement between and all information received from the parties. All information exchanged pursuant to this Section 5.07 shall be subject to Company confidential in accordance with the Confidentiality Agreement. To the extent that No investigation by Buyer, Merger Sub or any of the their respective Representatives and no other receipt of information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilegeby Buyer, work product doctrine Merger Sub or any other applicable privilege concerning pending of their respective Representatives, whether before or threatened legal proceedings or governmental investigations, after the parties understand and agree that they have a commonality date of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, shall operate as a waiver or otherwise affect the representations, warranties, obligations, covenants and under the joint defense doctrine. (i) Each agreements of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance (or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s remedies with respect thereto) or the Company’s conditions to the obligations to effect the Mergers (as applicable) of Buyer and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default Merger Sub under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedthis Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Radiant Systems Inc), Merger Agreement (NCR Corp)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Merger Agreement

Access; Consultation. (a) Upon reasonable advance notice (and in any event not less than twenty-four (24) hours’ notice), and except as may otherwise be required by applicable Law, (x) the Company shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers or employees to, and shall direct its other Representatives to, afford Parent’s Parent and its Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, bookscommitments, Tax Returns, Contracts, books and records and contracts to the extent related to the Retained Business or the Transactions and, (y) during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish as promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly practicable to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by ParentParent in connection with the Merger; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6, to the extent that, that (i) in the reasonable good faith judgment of such partythe Company’s outside legal counsel, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties information or disclosure thereof would expose the Company to an unreasonable risk of liability for disclosure of sensitive personal information, (ii) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or its disclosure would violate the terms of any confidentiality agreement or other Contract that is binding on the Company or any of its Subsidiaries or (iii) disclosure of any such information or document would result in the waiver or loss of attorney-client privilege, work product doctrine or any other legal privilege; provided, further, further that with respect to the foregoing clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction (solely to the extent necessary) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the CompanyCompany may, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, pursuant to the terms of an agreement with respect thereto on terms that are reasonably acceptable to Parent and the Company and pursuant to which such information shall not be disclosed by such outside counsel to any directors, officers or otherwise as employees of the restriction indicatesrecipient without the express prior permission of the Company or its legal counsel, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6, including all information and/or discussions resulting from any access provided pursuant to this Section 6.6 shall be subject to the Confidentiality Agreement. Agreements, which shall survive any termination of this Agreement and continue in full force and effect in accordance with its terms. (c) To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Merger Agreement (Covetrus, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries Subsidiaries, and its and their Representatives to, afford Parent’s Representatives Parent and its Representatives, and the Lender and its Representatives, reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, customers, suppliers, properties, assets, commitments, Tax Returns, books, records and contracts to the extent related to the Retained Business or the Transactions Contracts and, during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent and its Representatives all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by ParentParent in connection with the Merger; provided provided, that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall not require neither either the Company nor or Parent to (i) permit any invasive environmental sampling or any inspection or to (ii) disclose any information pursuant to this Section 5.07 6.6, in the case of clause (ii), to the extent that, that in the reasonable good faith judgment of such party’s outside legal counsel, (iA) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (iiB) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iiiC) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (iA) through (iiiC) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1I) obtain the required consent of any such third party to provide such inspection or disclosure, (2II) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3III) in the case of clauses (iA) and (iiiC) of this Section 6.6(a), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction (solely to the extent necessary) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. No investigation pursuant to this Section 6.6 or information provided, made available or delivered to Parent pursuant to this Agreement shall affect any of the representations, warranties, rights or remedies of the parties hereunder. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company and Parent shall give prompt written notice to one another of (i) any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of (ii) any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (iiiii) any written notice or other communication received by such party from any Governmental Entity in connection with this Agreement or the Company shall give reasonably prompt notice to Parent upon Merger or from any Person alleging that the receipt consent of any notice alleging a material breach such Person is or default under any Material Contract or Additional Contract; provided that any failure to give notice may be required in accordance connection with the foregoing shall not in Merger and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedother transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Front Yard Residential Corp)

Access; Consultation. (a) Upon reasonable advance notice (and in any event not less than twenty-four (24) hours’ notice), and except as may otherwise be required by applicable Law, (x) the Company shall, and shall cause its Subsidiaries Subsidiaries, and shall direct its and their Representatives to, afford Parent’s Representatives , its Subsidiaries and the Financing Parties reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records records, Tax Returns and contracts to the extent related to the Retained Business or the Transactions and, (y) during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I1) in the case of Parent, furnish promptly to Parent, its Subsidiaries and the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent Financing Parties all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by ParentParent or the Financing Parties in connection with the Merger or the Financing and (2) cooperate reasonably with Parent in preparing for the transition and integration of the financial reporting systems of the Company and its Subsidiaries to and with the financial reporting systems of Parent or its Subsidiaries following the Effective Time, including by considering in good faith any comments of Parent with respect to the Company’s preparation of financial statements; provided provided, that no investigation pursuant to this Section 5.07 6.6 or information provided, made available or delivered to Parent, its Representatives or the Financing Parties pursuant to this Agreement shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, provided further, that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any similar invasive environmental inspection or to disclose any information pursuant to this Section 5.07 6.6, to the extent that, that (i) in the reasonable and good faith judgment of such partythe Company, (i) any applicable Law or Order requires the Company or its Subsidiaries to restrict or prohibit access to any such properties information or disclosure thereof would expose the Company to an unreasonable risk of liability for disclosure of sensitive or personal information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or its disclosure would violate the terms of any confidentiality agreement or other Contract that is binding on the Company or any of its Subsidiaries, or (iii) disclosure of any such information or document would result in the waiver or loss of attorney-client privilege, work product doctrine or any other legal privilege; provided, provided further, that with respect to the foregoing clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1A) obtain the required consent of any such third party to provide such inspection or disclosure, (2B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3C) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction (solely to the extent necessary) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation or cooperation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information or cooperation made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each To the extent Parent requests further information or investigation of Parent the basis of any potential violations of Laws relating to Sanctions and Export Controls, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cooperate with such request, make available any personnel or experts engaged by the Company or its Subsidiaries necessary to accommodate such request, and, if reasonably requested by Parent, make submissions as promptly as practicable thereafter to Governmental Entities concerning such potential violations or to satisfy obligations under Laws relating to Sanctions and Export Controls (including, for the avoidance of doubt, self-classification reports to BIS), consistent with Law, in consultation with Parent; provided, that nothing in this Section 6.6(b) shall require such cooperation to the extent it would, or would be likely to, (A) interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (B) require the Company or any of its Subsidiaries to take any action that will conflict with or violate the Company’s or any such Subsidiary’s constitutional documents or any applicable Law, or (C) require the Company or any of its Subsidiaries to bear any out-of-pocket third party cost or expense or pay any fee (other than those costs and fees that Parent commits to reimburse). (c) The Company may, as it reasonably deems advisable and necessarynecessary to comply with applicable Law, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, recipient pursuant to a reasonable arrangement designed to assure compliance with Law and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6, including all information and/or discussions resulting from any access provided pursuant to this Section 6.6 shall be subject to the Confidentiality Agreement. , which shall survive any termination of this Agreement and continue in full force and effect in accordance with its terms. (d) To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (ie) Each of the Company and Parent shall shall, after becoming aware, give prompt written notice to one another of (i) any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of (ii) any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable), (iii) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice or other communication received by such party from any Governmental Entity in connection with this Agreement or the Merger or from any Person alleging a material breach that the consent of such Person is or default under any Material Contract or Additional Contract; provided that any may be required in connection with the Merger and the other transactions contemplated by this Agreement. The failure to give notice in accordance with the foregoing provide notification under this Section 6.6 shall not in and affect the representations or warranties of itself be deemed the notifying party or the conditions to constitute the failure obligations of any condition set forth in Section 6.02(b) the parties under this Agreement or Section 6.03(b) to be satisfiedlimit or otherwise affect the remedies available hereunder.

Appears in 1 contract

Samples: Merger Agreement (Vonage Holdings Corp)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its each of the Company Subsidiaries to, afford Parent and Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s ’s, and its each of the Company Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective each of the Company Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ assets, liabilities, capital stock, business and personnel as may reasonably be requested by Parent or Parent’s Representatives, including using commercially reasonable efforts to cooperate with Parent and its Representatives in connection with the provision of customary information regarding the Company and the Company Subsidiaries as reasonably requested by Parent to the extent required by its bank credit facilities (subject to the confidentiality provisions contained therein) for delivery of certificates and information relating to acquisitions; provided provided, that no investigation pursuant to this Section 5.07 5.4 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 5.4 to the extent that, that in the reasonable good faith judgment of such party, the Company (after consultation with outside counsel) (i) any applicable Law requires the Company or its the Company Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a5.4(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i), (ii) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to reasonably remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or confidentiality obligations or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.4 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.this

Appears in 1 contract

Samples: Merger Agreement (Keyw Holding Corp)

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Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries and its and their Representatives to, afford Parent’s Representatives Parent and its Representatives, and the Lenders and their Representatives, reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, customers, suppliers, properties, assets, commitments, Tax Returns, books, records and contracts to the extent related to the Retained Business or the Transactions Contracts and, during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case such Representatives of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by such Representatives of Parent; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall not require neither either the Company nor or Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6, to the extent that, that in the reasonable good faith judgment of such party, the Company’s outside legal counsel: (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) legal counsel disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction (solely to the extent necessary, as reasonably determined by the Company’s outside legal counsel) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) . Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ib) Each of the Company and Parent shall shall, after becoming aware, give prompt written notice to one another of (i) any change, effect, circumstance or development that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of (ii) any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable), (iii) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice or other communication received by such party from any Governmental Entity in connection with this Agreement or the Merger or from any Person alleging a material breach that the consent of such Person is or default under any Material Contract or Additional Contract; provided that any failure to give notice may be required in accordance connection with the foregoing Merger and the other transactions contemplated by this Agreement. No notification under this Section 6.6 shall not in and affect the representations or warranties of itself be deemed the notifying party or the conditions to constitute the failure obligations of any condition set forth in Section 6.02(b) the parties under this Agreement or Section 6.03(b) to be satisfiedlimit or otherwise affect the remedies available hereunder.

Appears in 1 contract

Samples: Merger Agreement (Athenahealth Inc)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required prohibited by applicable Law, Technest and Company each shall (and the Company shall, and shall cause its Subsidiaries to) afford to the other and the employees, afford Parent’s Representatives agents and representatives (including any investment banker, attorney or accountant retained by either party) of either party, as the case may be, reasonable access, during normal business hours during throughout the period prior to the First Effective TimeSecond Closing Date, to the Company’s and its Subsidiaries’ employees, properties, assets, books, Contracts and records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each shall (and the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business or the Transactions its business, properties and personnel as may reasonably be requested by Parent; requested, provided that no investigation pursuant to this Section 5.07 6.4 shall affect or be deemed to modify any representation or warranty made by Technest, the Company or Parent; the Stockholders under this Agreement, and provided, further, that the foregoing shall not require neither Technest or the Company nor Parent to permit any invasive environmental sampling or any inspection inspection, or to disclose any information pursuant to this Section 5.07 to the extent thatinformation, that in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent Technest or the Company, as applicablethe case may be, would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality if Technest or the Company, as the case may be, shall use its commercially have used all reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.4 shall be directed to (x) in the case of a request to the Company, an executive officer of Technest or the Company or such Person Company, as may be designated by any such executive officer or (y) in the case of a request to Parentmay be, an executive officer of Parent or such Person as may be designated by any such executive officer, as the case may be. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided Subject to applicable Laws relating to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and exchange of information, from the information contained therein shall be given only Agreement Date to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigationsFirst Closing Date, the parties understand Company and Technest agree that they have to consult with each other on a commonality of interest regular basis on a schedule to be agreed with respect regard to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrinerespective operations. (ic) Each Upon reasonable notice, and except as may be prohibited by applicable law, Technest will use reasonable efforts to cause its Significant Investees to provide the Company with such non-confidential information regarding their respective businesses, operations and future prospects, as may be reasonably necessary for the Company to evaluate the risks and merits of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedExchange.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Financial Intranet Inc/Ny)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries Subsidiaries, and shall direct its and their Representatives and the Manager to, afford Parent’s Parent and its Representatives reasonable accessaccess (taking into account COVID-19), during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, customers, suppliers, properties, assets, commitments, Tax Returns, books, records and contracts Contracts and to the Prospective Employees (as such term is defined in the Termination Agreement) and the books and records of the Manager that relate to the Company and its Subsidiaries (to the extent related to such books and records are accessible or reasonably obtainable by the Retained Business or the Transactions Company), and, during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) furnish as promptly as reasonably practicable, to Parent and its Representatives all information in the case possession of Parent, furnish promptly to the Company information concerning the Transactions as or its Subsidiaries or that may be reasonably requested obtained by Company, and (II) in the case of the Company, furnish promptly to Parent all information in each case, concerning the Retained Business its or any of its Subsidiaries’ capital stock, business and personnel or the Transactions Prospective Employees as may reasonably be requested by ParentParent in connection with the Merger; provided provided, that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall not require neither the Company nor Parent to (i) permit any invasive environmental sampling or any inspection or to (ii) disclose any information pursuant to this Section 5.07 6.6, in the case of clause (ii), to the extent that, that in the reasonable good faith judgment of such partythe Company’s outside legal counsel, (iA) any applicable Law requires the Company or any of its Subsidiaries to restrict or prohibit access to any such properties or information, (iiB) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iiiC) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (iA) through (iiiC) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1I) obtain the required consent of any such third party to provide such inspection or disclosure, (2II) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3III) in the case of clauses (iA) and (iiiC) of this Section 6.6(a), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction (solely to the extent necessary) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer officer. No investigation pursuant to this Section 6.6 or (y) in information provided, made available or delivered to Parent pursuant to this Agreement shall affect any of the case representations, warranties, rights or remedies of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officerthe parties hereunder. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Prior to the Effective Time, the Company and Parent shall reasonably cooperate in identifying any actions or practices of the Company or any of its Subsidiaries that could require remediation under applicable Law and, to the extent identified, shall cooperate in taking commercially reasonable actions or practices and other customary actions to reduce the risks related to such actions where the failure to remediate would reasonably be likely to result in substantial fines or penalties. (ic) Each of the Company and Parent shall give prompt written notice to one another of (i) any change, effectevent, occurrence, development, circumstance or development condition that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of (ii) any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (iiiii) any written notice or other communication received by such party from any Governmental Entity in connection with this Agreement or the Company shall give reasonably prompt notice to Parent upon Merger or from any Person alleging that the receipt consent of any notice alleging a material breach such Person is or default under any Material Contract or Additional Contract; provided that any failure to give notice may be required in accordance connection with the foregoing shall not in Merger and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfiedother transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Front Yard Residential Corp)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (Ii) in the case of Parent, furnish promptly to the Company information concerning regarding the Transactions matters set forth in Section 6.6(a) of the Parent Disclosure Letter as may be reasonably requested by Company, the Company and (IIii) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6 to the extent that, that (i) in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to Notwithstanding any other provision of this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to agreement, (xi) in the case of a request to the Company, an executive officer of neither the Company or such Person as may be designated by nor Parent shall disclose any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided information to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and where doing so would violate the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorneyAnti-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.Collusion Rules,

Appears in 1 contract

Samples: Merger Agreement

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Initial Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning any of the Retained Business or the Transactions foregoing as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6 to the extent that, that (i) in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company such party or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, shall (A) use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2B) use reasonable best efforts develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3C) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 In no event shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.this

Appears in 1 contract

Samples: Merger Agreement (Univar Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its each of the Company Subsidiaries to, afford Parent and Parent’s Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s ’s, and its each of the Company Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective each of the Company Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ assets, liabilities, capital stock, business and personnel as may reasonably be requested by Parent or Parent’s Representatives, including using commercially reasonable efforts to cooperate with Parent and its Representatives in connection with the provision of customary information regarding the Company and the Company Subsidiaries as reasonably requested by Parent to the extent required by its bank credit facilities (subject to the confidentiality provisions contained therein) for delivery of certificates and information relating to acquisitions; provided provided, that no investigation pursuant to this Section 5.07 5.4 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 5.4 to the extent that, that in the reasonable good faith judgment of such party, the Company (after consultation with outside counsel) (i) any applicable Law requires the Company or its the Company Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a5.4(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i), (ii) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to reasonably remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or confidentiality obligations or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.4 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information made pursuant to this Section 5.07 5.4 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to ParentCompany, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the The Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside legal counsel of the recipientParent, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the partiesParties. All information exchanged pursuant to this Section 5.07 5.4 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 5.4 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties Parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (ic) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development Effect that would reasonably be expected likely to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied).

Appears in 1 contract

Samples: Merger Agreement (Jacobs Engineering Group Inc /De/)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable LawFrom the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 11.01, the Company shall, and Buyer Group shall cause its Subsidiaries to, afford Parent’s Representatives (i) have access upon reasonable accessadvance notice, during normal business hours during the period prior to the First Effective Timehours, to the Company’s offices, employees (including for the purpose of hiring interviews), officers, representatives, and its Subsidiaries’ employeesother personnel, properties, assetsAssets, booksbooks and records of the Business and the Sellers that the Buyer Group may reasonably request, records (ii) be furnished by the Sellers with true, correct and contracts complete copies of such additional financial and operating data and other information regularly prepared or received by Sellers, including any performance reports for the Business, in each case to the extent in the possession of or reasonably available to the Sellers, but without any representation or warranty by the Sellers and without recourse to the Sellers, (iii) be furnished by the Sellers reasonable access to the employees of the Business and any information reasonably required for filing or obtaining any Consents, and (v) be consulted by the Sellers regarding all material operational decisions for the Business. The Buyer Group’s access under this Section 5.01 shall be exercised in a manner as to not unreasonably interfere with the Business. Without limiting the foregoing, (i) the Sellers shall have the right to cause any of their employees, agents or representatives to accompany the Buyer Group during the course of any such access, (ii) the Buyer Group shall observe and comply with any commercially reasonable safety, security and other rules and regulations imposed by the Sellers or the owners of the respective facilities (including, without limitation, social distancing, masking and other protocols related to the Retained Business or SARS-CoV-2 novel coronavirus (COVID-19)), (iii) access to any Leased Real Property shall be subject to all of the Transactions andterms of the applicable Leases, during (iv) all access, inspections and other activities of the Buyer Group shall be performed at the Buyer Group’s sole cost and expense, in a good and workmanlike manner, lien-free, and in compliance with all applicable laws, rules and regulations, and (v) prior to any such periodaccess, the Company and Parent shall, and Buyer Group shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly provide to the Company information concerning the Transactions Sellers upon request certificates of insurance evidencing such liability insurance and other coverages as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officerSellers. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Asset Purchase Agreement (3d Systems Corp)

Access; Consultation. (a) Upon reasonable advance notice, and except as may otherwise be required by applicable Law, (i) the Company shall, and shall cause its Subsidiaries to, afford Parent’s , the Debt Commitment Parties and their respective Representatives reasonable access, during normal business hours during the period prior to the First Effective TimePre-Closing Period, to the Company’s and its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, and (ii) during such periodPre-Closing Period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to Parent, the Company information concerning the Transactions as may be reasonably requested by Company, Debt Commitment Parties and (II) in the case of the Company, furnish promptly to Parent their respective Representatives all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parent, the Debt Commitment Parties or their respective Representatives in connection with the Offer or the Merger; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6, to the extent that, that (A) in the reasonable good faith judgment of such partythe Company, (i) any applicable Law or Order requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information or disclosure thereof would expose the Company to an unreasonable risk of liability for disclosure of sensitive or personal information, (iiB) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or its disclosure would violate the terms of any confidentiality agreement or other Contract that is binding on the Company or any of its Subsidiaries or (iiiC) disclosure of any such information or document would result in the waiver or loss of attorney-client privilege, work product doctrine or any other legal privilege; provided, further, further that with respect to the foregoing clauses (iA) through (iiiC) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable best efforts to (1I) obtain the required consent of any such third party to provide such inspection or disclosure, (2II) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3III) in the case of clauses (iA), (B) and (iiiC), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or Order or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as intended not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to ParentCompany, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the CompanyThe Company may, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipientrecipient pursuant to the terms of an agreement with respect thereto on terms that are reasonably acceptable to the Company and Parent and pursuant to which such information shall not be disclosed by such outside counsel to any directors, officers or otherwise as employees of the restriction indicatesrecipient without the express prior permission of the Company or its legal counsel, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6, including all information and/or discussions resulting from any access provided pursuant to this Section 6.6, shall be subject to the Confidentiality Agreement. , which shall survive any termination of this Agreement and continue in full force and effect in accordance with its terms. (c) To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings (other than legal proceedings between Parent and any of its Affiliates, on the one hand, and the Company and any of its Affiliates, on the other hand) or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (id) Each of the Company and Parent shall give prompt notice to one another if they become aware of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers Merger (as applicable). (e) Unless such action would violate applicable Law, the Company shall (i) notify Parent, as far in advance as practicable, of any material development or substantive communication or inquiry it or any of its Affiliates receives from or intends to make with any (x) Governmental Entity relating to any current or prospective Proceeding or otherwise related to compliance with Laws or (y) any party to any material current or prospective civil Proceeding, (ii) prior to making any such communication or inquiry, provide Parent and its counsel a reasonable opportunity to review, and shall consider in good faith the comments of the other party in connection with, any such communication or inquiry, (iii) promptly following the making such communication or inquiry, provide Parent with a copy of any such communication or inquiry (if in written form) and (iiiv) consult with Parent in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental Entity or party to any material civil Proceeding. In exercising the foregoing cooperation rights, the Parent and the Company each shall act reasonably and as promptly as reasonably practicable and the Company shall give reasonably prompt notice implement appropriate and mutually agreeable measures to Parent upon permit the receipt disclosure of such information in a manner to address reasonable privilege concerns, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) information to be satisfiedso provided.

Appears in 1 contract

Samples: Merger Agreement (Benefytt Technologies, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, the Company shall, and shall cause its Subsidiaries to, afford Parent’s Parent and its Representatives reasonable accessaccess (at the requesting Party’s cost) under the supervision of appropriate personnel of the Company and its Subsidiaries, during normal business hours during the period prior to the First Effective Time, to the Company’s ’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent other all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by Parentthe other; provided that no investigation pursuant to this Section 5.07 6.4 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection testing or to disclose any information pursuant to this Section 5.07 6.4 to the extent that, that (i) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (i) through (iii) of this Section 5.07(a6.4(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.4 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany and its Subsidiaries. All requests for information made pursuant to this Section 5.07 6.4 shall be directed in writing to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to ParentCompany, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Merger Agreement (Satsuma Pharmaceuticals, Inc.)

Access; Consultation. (a) Upon reasonable notice, and except as may otherwise be required by applicable Law, each of the Company and Parent shall, and shall cause each of its Subsidiaries and their respective Representatives to, afford Parentthe other Party’s Representatives reasonable accessaccess (at the requesting Party’s cost) under the supervision of appropriate personnel of the other Party, during normal business hours during the period prior to the First Effective Time, to the Company’s other Party’s, and each of its Subsidiaries’ employees, properties, assets, books, records and contracts to the extent related to the Retained Business or the Transactions and, during such period, each of the Company and Parent shall, and shall cause their respective each of its Subsidiaries to, (I) in the case of Parent, furnish as promptly to the Company as reasonably practicable all other information concerning the Transactions as may be reasonably requested by Companyits or any of its Subsidiaries’ capital stock, business and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions personnel as may reasonably be requested by Parentthe other, as and when reasonably requested by the requesting Party; provided that no investigation pursuant to this Section 5.07 5.7 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, further that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection testing or to disclose any information pursuant to this Section 5.07 5.7 to the extent that, that (a) in the reasonable good faith judgment of such partyParty, (i) any applicable Law requires the Company such Party or its Subsidiaries to restrict or prohibit access to any such properties or information, (iib) in the reasonable good faith judgment of such partyParty, the information is subject to confidentiality obligations to a third party party, or (iiic) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, further that with respect to clauses (ia) through (iiic) of this Section 5.07(a)5.7, Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1i) obtain the required consent of any such third party to provide such inspection or disclosure, (2ii) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3iii) in the case of clauses (ia) and (iiic), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 5.7 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyParty. All requests for information made pursuant to this Section 5.07 5.7 shall be directed in writing to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent as applicable, or such Person as may be designated by any such executive officer. (b) . Each of Parent and the Company, as Party shall take reasonable steps to ensure that any information it deems advisable and necessary, may reasonably designate competitively sensitive material provided to obtains regarding the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged Party pursuant to this Section 5.07 5.7 shall be subject to the Confidentiality Agreement. To the extent that any used solely in connection with, and in furtherance of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigationseffecting, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrineContemplated Transactions. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Merger Agreement (SomaLogic, Inc.)

Access; Consultation. (a) Upon reasonable advance notice (and in any event not less than twenty-four (24) hours’ notice), and except as may otherwise be required by applicable Law, (x) the Company shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall direct its other Representatives to, afford Parent’s Parent and its Representatives reasonable access, during normal business hours during the period prior to the First Effective Time, to the Company’s and its Subsidiaries’ employees, properties, assets, books, books and records and contracts to the extent related to the Retained Business or the Transactions and, (y) during such period, the Company and Parent shall, and shall cause their respective its Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business its or the Transactions any of its Subsidiaries’ capital stock, business and personnel as may reasonably be requested by ParentParent in connection with the Merger; provided that no investigation pursuant to this Section 5.07 6.6 shall affect or be deemed to modify any representation or warranty made by the Company or ParentCompany; and provided, further, further that the foregoing shall not require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 6.6, to the extent that, that (i) in the reasonable good faith judgment of such partythe Company, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties information or disclosure thereof would expose the Company to an unreasonable risk of liability for disclosure of sensitive or personal information, (ii) in the reasonable good faith judgment of such partythe Company, the information is subject to confidentiality obligations to a third party or its disclosure would violate the terms of any confidentiality agreement or other Contract that is binding on the Company or any of its Subsidiaries or (iii) disclosure of any such information or document would result in the waiver or loss of attorney-client privilege, work product doctrine or any other legal privilege; provided, further, further that with respect to the foregoing clauses (i) through (iii) of this Section 5.07(a6.6(a), Parent or the Company, as applicable, Company shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction necessary redactions or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other partyCompany. All requests for information made pursuant to this Section 5.07 6.6 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officer. (b) Each of Parent and the CompanyThe Company may, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, pursuant to the terms of an agreement with respect thereto on terms that are reasonably acceptable to Parent and the Company and pursuant to which such information shall not be disclosed by such outside counsel to any directors, officers or otherwise as employees of the restriction indicatesrecipient without the express prior permission of the Company or its legal counsel, and shall be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.6, including all information and/or discussions resulting from any access provided pursuant to this Section 6.6 shall be subject to the Confidentiality Agreement. kept confidential. (c) To the extent that any of the information or material furnished pursuant to this Section 5.07 6.6 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Merger Agreement (Agiliti, Inc. \De)

Access; Consultation. (a) Upon During the Pre-Closing Period, upon reasonable prior notice, and except as may otherwise be required by applicable Law, the Company Seller shall, and shall cause its each of the Plastics Business Subsidiaries to, (i) afford Parent’s the Buyer and the Representatives of Buyer reasonable access, during normal business hours during the period prior to the First Effective Timehours, to the Company’s senior employees and its Subsidiaries’ employeesexecutives, properties, assets, books, books and records and contracts to the extent related to the Retained Plastics Business or the Transactions and, during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Transactions as may be reasonably requested by Company, and (II) in the case of the Company, furnish promptly to Parent all information concerning the Retained Business or the Transactions as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.07 shall affect or be deemed to modify any representation or warranty made by the Company or Parent; and provided, further, that the foregoing shall require neither the Company nor Parent to permit any invasive environmental sampling or any inspection or to disclose any information pursuant to this Section 5.07 to the extent that, in the reasonable good faith judgment of such party, (i) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in furnish to Buyer and the Representatives of Buyer such additional financial and operating data and other information regarding the Plastics Business as Buyer or its Representatives may from time to time reasonably request for the purposes of consummating the Transactions, the Financing and preparing to operate the Plastics Business following the Closing. Such access shall include Buyer having reasonable access to, and the reasonable good faith judgment of such partyparticipation and cooperation of, the information is subject executives of Seller and its Affiliates set forth on Schedule 6.02 (the “Separation Executives”) during normal business hours to confidentiality obligations to a third party or (iii) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that assist Buyer with respect to clauses (i) through (iii) of this Section 5.07(a), Parent or the Company, as applicable, shall use its commercially reasonable efforts to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company and (3) in the case of clauses (i) and (iii), implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objectiontransition matters, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if negotiate and finalize the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation pursuant to this Section 5.07 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of the other party. All requests for information made pursuant to this Section 5.07 shall be directed to (x) in the case of a request to the Company, an executive officer of the Company or such Person as may be designated by any such executive officer or (y) in the case of a request to Parent, an executive officer of Parent or such Person as may be designated by any such executive officerTransitional Arrangements. (b) Each of Parent and the Company, as it deems advisable and necessary, may reasonably designate competitively sensitive material provided Notwithstanding anything in this Section 6.02 to the contrary, (i) (A) in no event shall Seller or any of the Plastics Business Subsidiaries or their respective Affiliates be obligated to provide any (1) access or information in violation of any applicable Law, (2) information with respect to bids, the identity of any bidder, confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received in connection with transactions comparable to those contemplated by this Agreement or any information or analysis relating to any such communications, (3) information the disclosure of which would jeopardize any applicable privilege (including attorney-client privilege) available to any of the Plastics Business Subsidiaries or any of their respective Affiliates relating to such information (but in such circumstance, Seller shall use commercially reasonable efforts to remove such obstacles), (4) information the disclosure of which would cause any Plastics Business Subsidiary or any of their respective Affiliates to breach a confidentiality obligation to which it is bound that is more restrictive than the confidentiality obligations contained in the documents in the Seller’s data room, or (5) any consolidated, affiliated, combined, unitary or similar Tax Return of Seller or its Affiliates (other than Tax Returns that relate solely to the Transferred Entities) and (B) the investigation contemplated by Section 6.02(a) shall not unreasonably interfere with any of the businesses, personnel or operations of Seller (with respect to the Plastics Business) or any of the Plastics Business Subsidiaries or any of their respective Affiliates or the Plastics Business; (ii) the auditors and accountants of Seller or any of the Plastics Business Subsidiaries or any of their respective Affiliates or the Plastics Business shall not be obligated to make any work papers available to any Person unless and until the Mergers have been consummated and such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants; (iii) during the Pre-Closing Period, Buyer shall not conduct, without the prior written consent of Seller, which Seller may withhold for any reason, any intrusive environmental testing at any property owned or used by the Plastics Business or Seller, the Plastics Business Subsidiaries or any of their respective Affiliates, including any sampling, testing or other intrusive indoor or outdoor testing of soil, subsurface strata, surface water, groundwater, sediments or ambient air at or in connection with any property owned, used or leased by the Plastics Business, Seller, the Plastics Business Subsidiaries or any of their respective Affiliates; and (iv) during the Pre-Closing Period, except as provided in Section 6.02(a), without the prior written consent of Seller, which Seller shall not unreasonably withhold, delay or condition, neither Buyer nor any of its Representatives shall contact any employees of, suppliers to, or customers of, Seller (with respect to the Plastics Business), any Plastics Business Subsidiary or any of their respective Affiliates in connection with or with respect to this Agreement, any other Transaction Agreement or any Transaction, other than to facilitate the consummation of the Transactions (including to give any notice or seek any consent that may be required in connection with the Transactions) but subject to the limitations required under this Agreement. (c) Any competitively-sensitive information provided by Seller to Buyer (or by Buyer to Seller) may be reasonably designated as “Outside Counsel Only Material,” “Outside Antitrust Counsel Material,” or with other similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient, recipient or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the parties. All information exchanged pursuant to this Section 5.07 6.02 shall be subject to the Confidentiality Agreement. To the extent that any of the information or material furnished pursuant to this Section 5.07 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. (i) Each of the Company and Parent shall give prompt notice to one another of any change, effect, circumstance or development that would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable), or of any reasonably likely failure of any condition to Parent’s or the Company’s obligations to effect the Mergers (as applicable) and (ii) the Company shall give reasonably prompt notice to Parent upon the receipt of any notice alleging a material breach or default under any Material Contract or Additional Contract; provided that any failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.02(b) or Section 6.03(b) to be satisfied.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Univar Inc.)

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