Access, Information and Confidentiality. (a) For so long as Purchaser owns any Securities, the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations. (b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 2 contracts
Samples: Investment Agreement (DBD Cayman, Ltd.), Investment Agreement (Boston Private Financial Holdings Inc)
Access, Information and Confidentiality. (a) For so long as Purchaser owns any Securities, the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided provided, however, that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 2 contracts
Samples: Investment Agreement (DBD Cayman, Ltd.), Investment Agreement (Boston Private Financial Holdings Inc)
Access, Information and Confidentiality. (a) For From the date hereof and continuing following the Closing for so long as Purchaser owns any Securities, the Company will (i) permit Purchaser, its Affiliates and any employees or other representatives of the Purchaser or any such Affiliate, to visit and inspect, at Purchaser’s expense, inspect the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the CompanyCompany or any Company Subsidiary, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) make appropriate officers and directors of the Company and Company Subsidiaries available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iii) to the extent not prohibited by applicable Law (and with respect to events which require public disclosure in the Company’s reasonable determination, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. From Closing until the Board Representative is appointed to the Board of Directors of the Company, the Company will deliver to Purchaser, simultaneously with promptly following its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulationLaw, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement made available to Purchaser to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of attorney-client privilege to the Company or any Company Subsidiary (provided that after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties). The Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where in which the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, preceding sentence apply.
(b) Purchaser and the Company shall cooperate hold all information furnished by or on behalf of the other party or its Affiliates or their respective Representatives in good faith confidence to agree upon mutually satisfactory management access the extent required by, and information rights which satisfy such regulationsin accordance with, the provisions of the non-disclosure agreement, dated July 21, 2020, among Purchaser and the Company (the “Confidentiality Agreement”).
(bc) Each party to this Agreement will holdFrom the date hereof until the Closing, the Company shall not, and will it shall cause its respective Affiliates and their its and each such Affiliate’s respective representatives, directors, officers, employees, agentsconsultants, consultants attorneys, accountants and advisors agents (“Representative”) not to, directly or indirectly, without the prior written consent of Purchaser, (i) negotiate, enter into, agree to, pursue, solicit or encourage any offer or proposal, or the making of any offer or proposal, letter of intent or other indication of interest (including by way of furnishing any information concerning or relating to holdthe Company or its business, in strict confidencewhether oral, unless disclosure to a regulatory authority is necessary written, electronic or appropriate in connection with otherwise, including without limitation any necessary regulatory approval and all notes, memoranda, summaries, compilations, forecasts, studies, data, analyses or unless disclosure is required other documents prepared by judicial the Company or administrative process or, in the written opinion any of its counselRepresentatives which use, by other requirement of law contain, are derived from, incorporate or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and otherwise reflect such information (collectively, the “InformationCompany Evaluation Material”) concerning the other party hereto furnished ), or access to it by any such other party Company Evaluation Material), or its representatives pursuant to this Agreement (except to the extent that enter into any agreement, arrangement or understanding with respect to, or otherwise assist any person in such information can be shown to have been person’s consideration, evaluation or pursuit of, (1) previously known by such party on a non-confidential basis, possible recapitalization or other disposition of a substantial portion of the assets of the Company or (2) in any transaction substantially similar to the public domain through no fault of transaction contemplated hereby with any other person (other than Purchaser) (any such party transaction, an “Alternative Transaction”) or
(ii) provide any Company Evaluation Material or (3) later lawfully acquired from other sources by information relating to the party to which it was furnished), and neither party hereto shall release transaction contemplated hereby or disclose such Information any Alternative Transaction to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsperson in connection with or relating to any Alternative Transaction.
Appears in 1 contract
Access, Information and Confidentiality. (a) For so long From the date hereof, until the date when the Securities purchased pursuant to this Agreement and Beneficially Owned by an Investor represent less than 5% of the outstanding Common Stock (counting as Purchaser owns shares owned by such Investor all shares into which shares of Convertible Preferred Stock or Warrants owned by such Investor are convertible or exercisable and assuming that to the extent such Investor shall purchase any Securitiesadditional shares of Common Stock, any later sales of Common Stock by such Investor shall be deemed to be shares other than Securities to the extent of such additional purchases) (the “Qualifying Ownership Interest”), the Company will (i) permit Purchaser such Investor to visit and inspect, at Purchasersuch Investor’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser such Investor may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser such Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser the Investor or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser Investors and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and how the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate has utilized the funds the Company received hereunder in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion sale of its counsel, by other requirement the Preferred Shares and the effects of law or such funds on the applicable requirements operations and status of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to Company; 1 To the extent that such information can be shown to have been (1) previously known by such party the Company informed the Treasury on a non-confidential basis, (2) the Signing Date that it does not prepare financial statements in accordance with GAAP in the public domain through no fault ordinary course, the Treasury may consider other annual financial reporting packages acceptable to it in its sole discretion. (E) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.Company; and
Appears in 1 contract
Samples: Securities Purchase Agreement (Avenue Financial Holdings, Inc.)
Access, Information and Confidentiality. (a1) For From the date hereof and continuing following the Closing for so long as Purchaser owns any Securities, the Company will (i) permit Purchaser, its Affiliates and any employees or other representatives of the Purchaser or any such Affiliate, to visit and inspect, at Purchaser’s expense, inspect the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the CompanyCompany or any Company Subsidiary, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) make appropriate officers and directors of the Company and Company Subsidiaries available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business 46 and affairs of the Company and Company Subsidiaries and (iii) to the extent not prohibited by applicable Law (and with respect to events which require public disclosure in the Company’s reasonable determination, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. From Closing until the Board Representative is appointed to the Board of Directors of the Company, the Company will deliver to Purchaser, simultaneously with promptly following its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulationLaw, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement made available to Purchaser to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of attorney-client privilege to the Company or any Company Subsidiary (provided that after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties). The Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where in which the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, preceding sentence apply.
(2) Purchaser and the Company shall cooperate hold all information furnished by or on behalf of the other party or its Affiliates or their respective Representatives in good faith confidence to agree upon mutually satisfactory management access the extent required by, and information rights which satisfy such regulationsin accordance with, the provisions of the non-disclosure agreement, dated July 21, 2020, among Purchaser and the Company (the “Confidentiality Agreement”).
(b3) Each party to this Agreement will holdFrom the date hereof until the Closing, the Company shall not, and will it shall cause its respective Affiliates and their its and each such Affiliate’s respective representatives, directors, officers, employees, agentsconsultants, consultants attorneys, accountants and advisors agents (“Representative”) not to, directly or indirectly, without the prior written consent of Purchaser, (i) negotiate, enter into, agree to, pursue, solicit or encourage any offer or proposal, or the making of any offer or proposal, letter of intent or other indication of interest (including by way of furnishing any information concerning or relating to holdthe Company or its business, in strict confidencewhether oral, unless disclosure to a regulatory authority is necessary written, electronic or appropriate in connection with otherwise, including without limitation any necessary regulatory approval and all notes, memoranda, summaries, compilations, forecasts, studies, data, analyses or unless disclosure is required other documents prepared by judicial the Company or administrative process or, in the written opinion any of its counselRepresentatives which use, by other requirement of law contain, are derived from, incorporate or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and otherwise reflect such information (collectively, the “InformationCompany Evaluation Material”) concerning the other party hereto furnished ), or access to it by any such other party Company Evaluation Material), or its representatives pursuant to this Agreement (except to the extent that enter into any agreement, arrangement or understanding with respect to, or otherwise assist any person in such information can be shown to have been person’s consideration, evaluation or pursuit of, (1) previously known by such party on a non-confidential basis, possible recapitalization or other disposition of a substantial portion of the assets of the Company or (2) in any transaction substantially similar to the public domain through no fault of transaction contemplated hereby with any other person (other than Purchaser) (any such party transaction, an “Alternative Transaction”) or (3ii) later lawfully acquired from other sources by provide any Company Evaluation Material or information relating to the party to which it was furnished), and neither party hereto shall release transaction contemplated hereby or disclose such Information any Alternative Transaction to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsperson in connection with or relating to any Alternative Transaction.
Appears in 1 contract
Samples: Investment Agreement (TriState Capital Holdings, Inc.)
Access, Information and Confidentiality. (a) For so long From the date hereof until the date when the Securities purchased pursuant to this Agreement and held by Purchaser represent less than 5% of the outstanding Common Stock (counting as shares owned by Purchaser owns all Converted Common Shares and assuming that to the extent Purchaser shall purchase any Securitiesadditional shares of Common Stock, any later sales of Common Stock by Purchaser shall be deemed to be shares other than Securities to the extent of such additional purchases) (the "Qualifying Ownership Interest"), the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “"plan assets” " regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “"Information”") concerning the other party hereto furnished to it by such other party or party, its representatives or any Board Observer pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsadvisors and as permitted by Section 4.1(f).
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential Annex C (General Terms and Conditions) Page 15 information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined that how the rights afforded pursuant to this Section 3.2 are not sufficient for purposes Company has utilized the funds the Company received hereunder in connection with the sale of the Department Preferred Shares and the effects of Labor’s “plan assets” regulationssuch funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the extent Charter, bylaws or other organizational documents of the Company; and (F) at the same time as such plan assets regulation applies items are sent to any stockholders of the investment in the SecuritiesCompany, Purchaser and copies of any information or documents sent by the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits stockholders.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (Origin Bancorp, Inc.)
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined that how the rights afforded pursuant to this Section 3.2 are not sufficient for purposes Company has utilized the funds the Company received hereunder in connection with the sale of the Department Preferred Shares and the effects of Labor’s “plan assets” regulationssuch funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the extent Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such plan assets regulation applies items are sent to any stockholders of the investment in the SecuritiesCompany, Purchaser and copies of any information or documents sent by the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits stockholders.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Sunshine Bancorp, Inc.)
Access, Information and Confidentiality. (a) For so long From the date hereof, until the date when the Securities purchased pursuant to this Agreement and held by Purchaser represent less than 5% of the outstanding Common Stock (counting as shares owned by Purchaser owns all shares into which shares of Convertible Preferred Stock or the Warrant owned by Purchaser are convertible or exercisable and assuming that to the extent Purchaser shall purchase any Securitiesadditional shares of Common Stock, any later sales of Common Stock by Purchaser shall be deemed to be shares other than Securities to the extent of such additional purchases) (the “Qualifying Ownership Interest”), the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 1 contract
Access, Information and Confidentiality. (a) For so long as Purchaser owns any (i) in the case of the GSO Purchasers, the GSO Purchasers together with their Affiliates own at least the Qualifying Ownership Interest of the GSO Securities, or (ii) in the case of the FNF Purchasers, the FNF Purchasers together with their Affiliates own at least the Qualifying Ownership Interest of the FNF Securities, the Company will (i) permit Purchaser such Purchasers and their Affiliates to visit and inspect, at Purchaser’s such Purchasers’ expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser such Purchasers may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides the Purchasers provide assurances reasonably acceptable to the Company that such information shall not be used by Purchaser the Purchasers or its their respective Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of attorney-client privilege to the Company or any Company Subsidiary (provided that the Subsidiary. The Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where any of the restrictions in this clause (z) the foregoing clauses apply), and shall provide, to the extent feasible, a simple description of any information withheld on the basis of the foregoing restrictions. In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser the Purchasers and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
. “Qualifying Ownership Interest” means 25% of Securities acquired by such person hereunder, calculated on an as converted basis (bassuming a Conversion Price equal to the value of clause (iii) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, of the definition of Floor Price (each as defined in the written opinion applicable Certificate of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnishedDesignations), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors).
Appears in 1 contract
Samples: Investment Agreement (FGL Holdings)
Access, Information and Confidentiality. (a) For so long as From the date hereof until the date when the Common Shares held by Purchaser owns any Securitiesrepresent less than 5% of the outstanding Common Shares, the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, or by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 1 contract
Samples: Investment Agreement (Bank of N.T. Butterfield & Son LTD)
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change quarterly reports provided to other stockholders of the Company or Company management by the Company; 1 To the extent that the Company informed the Treasury on the Signing Date that it does not prepare financial statements in accordance with GAAP in the ordinary course, the Treasury may consider other annual financial reporting packages acceptable to it in its sole discretion.
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined that how the rights afforded pursuant to this Section 3.2 are not sufficient for purposes Company has utilized the funds the Company received hereunder in connection with the sale of the Department Preferred Shares and the effects of Labor’s “plan assets” regulationssuch funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the extent Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such plan assets regulation applies items are sent to any stockholders of the investment in the SecuritiesCompany, Purchaser and copies of any information or documents sent by the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits stockholders.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (Heritage Bankshares Inc /Va)
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;(1)
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined how the Company has utilized the funds the
(1) To the extent that the rights afforded pursuant Company informed the Treasury on the Signing Date that it does not prepare financial statements in accordance with GAAP in the ordinary course, the Treasury may consider other annual financial reporting packages acceptable to this Section 3.2 are not sufficient for purposes it in its sole discretion. Company received hereunder in connection with the sale of the Department Preferred Shares and the effects of Labor’s “plan assets” regulationssuch funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the extent Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such plan assets regulation applies items are sent to any stockholders of the investment in the SecuritiesCompany, Purchaser and copies of any information or documents sent by the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits stockholders.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (First Busey Corp /Nv/)
Access, Information and Confidentiality. (a) For so long as Purchaser owns any SecuritiesFrom the date hereof, until the date when the Investor holds less than 50% of the Convertible Preferred Stock or Common Stock into which shares of Convertible Preferred Stock owned by the Investor are convertible (the “Qualifying Ownership Interest”), the Company will (i) permit Purchaser the Investor to visit and inspect, at Purchaserthe Investor’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser the Investor may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser the Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser the Investor or its Affiliates to compete with the Company and Company Subsidiaries), (iii) that is protected by attorney-client privilege, or (ziv) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will use its best efforts to cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and and, subject to the foregoing, neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisors.
Appears in 1 contract
Access, Information and Confidentiality. (a) For so long as Purchaser owns an Anchor Investor Beneficially Owns in the aggregate with its Affiliates 20% or more of the number of shares of Common Stock purchased by such Anchor Investor pursuant to this Agreement (counting as shares owned and purchased by such Anchor Investor all shares into which the Warrants owned by such Anchor Investor are exercisable) (as adjusted from time to time for any Securitiesreorganization, recapitalization, stock split, reverse stock split, or other like changes in the Company’s capitalization) (the “Qualifying Ownership Interest”), the Company will (i) permit Purchaser such Anchor Investor to visit and inspect, at Purchasersuch Anchor Investor’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser such Anchor Investor may reasonably request, (ii) deliver to Purchasersuch Anchor Investor, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Company Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser such Anchor Investor for consultation with Purchaser such Anchor Investor or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law Law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law Law filings or otherwise), inform the Purchaser such Anchor Investor or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser such Anchor Investor or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulationLaw, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser such Anchor Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser such Anchor Investor or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser each Anchor Investor and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion advice of its counsel, by other requirement of law Law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party party, or (3) later lawfully acquired from other sources by the party to which it was furnishedfurnished and such other sources were not, to such party’s knowledge, otherwise obligated to maintain such information as confidential), and neither party hereto shall release or disclose such Information to any other person; provided, except that an Anchor Investor may disclose Information (i) on a confidential basis (x) to its auditors, attorneys, financial advisors, financing sources and other consultants and advisorsadvisors to the extent necessary to obtain their services in connection with monitoring its investment in the Company, (y) to any prospective purchaser of any Securities from such Anchor Investor as long as such prospective purchaser agrees to be bound by the provisions of this Section 3.2(b) as if an Anchor Investor, and (z) to any Affiliate, direct or indirect partner, member or related investment fund of such Anchor Investor and their respective directors, employees and consultants, in each case in the ordinary course of business, (ii) as may be reasonably determined by such Anchor Investor to be necessary in connection with such Anchor Investor’s enforcement of its rights in connection with this Agreement or its investment in the Company and the Company Subsidiaries or (iii) as may otherwise be required by Law or legal, judicial or regulatory process, provided that such Anchor Investor takes reasonable steps to minimize the extent of any required disclosure described in this clause (iii); provided, however, the Anchor Investor will use its reasonable efforts to give the Company advance written notice of any such disclosure so that the Company may seek an appropriate protective Order; and provided, further, that the acts and omissions of any person to whom such Anchor Investor may disclose Information pursuant to clause (i) of the preceding proviso shall be attributable to such Anchor Investor for purposes of determining such Anchor Investor’s compliance with this Section 3.2(b).
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation from disclosing to Treasury);
(D) annually on a date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of how the Company has utilized the funds the Company received hereunder in connection with the sale of the Preferred Shares and the effects of such funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the Charter, bylaws or a judicial or administrative interpretation other organizational documents of applicable law or regulation, it is reasonably determined the Company; and 1 To the extent that the rights afforded pursuant to this Section 3.2 are Company informed the Treasury on the Signing Date that it does not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment prepare financial statements in accordance with GAAP in the Securitiesordinary course, Purchaser and the Company shall cooperate Treasury may consider other annual financial reporting packages acceptable to it in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits sole discretion.
(bF) Each party at the same time as such items are sent to this Agreement any stockholders of the Company, copies of any information or documents sent by the Company to its stockholders.
(iii) Treasury will use reasonable best efforts to hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (Community Bank Shares of Indiana Inc)
Access, Information and Confidentiality. (a) For so long as Purchaser owns any Securities, Seller shall cause the Company will (i) permit Purchaser to visit give to Buyer and inspectits agents, attorneys, employees, advisors and representatives full and free access at Purchaser’s expense, the properties all reasonable times to all of the Company properties, books, contracts, documents and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors records of the Company, and Company Subsidiaries, available periodically and at shall furnish to Buyer such times information as Buyer may from time to time reasonably requested by Purchaser for consultation with Purchaser or its designated representative request with respect to matters relating to the business and affairs (financial, operational or otherwise) of the Company (including permitting Buyer's representatives to meet with Seller, officers and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business employees of the Company, and nothing herein shall require their attorneys and accountants to obtain information concerning the Company Company, subject to applicable proprietary interests in such information by such accounts and any attorney-client privilege which cannot be waived by the Company, Seller or any Company Subsidiary to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company SubsidiariesAffiliate of Seller), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, Seller shall treat and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to holdhold as such all of the Confidential Information, in strict confidencerespect of Buyer, unless disclosure to a regulatory authority is necessary or appropriate refrain from using any such Confidential Information except in connection with this Agreement, and deliver promptly to Buyer or destroy, at the request and option of Buyer, all tangible embodiments (and all copies) of such Confidential Information which are in its possession. In the event that Seller is requested or required (by oral question or request for information or documents in any necessary regulatory approval legal proceeding, interrogatory, subpoena, civil investigative demand, or unless disclosure is required by judicial similar process) to disclose any Confidential Information, in respect of Buyer, Seller shall notify Buyer promptly of the request or administrative process orrequirement so that Buyer may seek at its own cost an appropriate protective order or waive compliance with the provisions of this Section 6.02(b). If, in the written opinion absence of its a protective order or the receipt of a waiver hereunder, Seller, on the advice of counsel, by other requirement of law or the applicable requirements of is required to disclose any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Confidential Information to any tribunal, Seller may disclose such Confidential Information, in respect of Buyer, to the tribunal; PROVIDED, HOWEVER, that Seller shall use its best efforts to obtain, at the request of Buyer, an order or other personassurance that confidential treatment will be accorded to such portion of such Confidential Information required to be disclosed as Buyer shall designate.
(c) Buyer shall treat and hold as such all of the Confidential Information in respect of Seller, refrain from using any such Confidential Information except its auditorsin connection with this Agreement, attorneysand deliver promptly to Seller or destroy, financial advisors, other consultants and advisors.at the request and
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 120 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined that how the rights afforded pursuant to this Section 3.2 are not sufficient for purposes Company has utilized the funds the Company received hereunder in connection with the sale of the Department Preferred Shares and the effects of Labor’s “plan assets” regulationssuch funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the extent Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such plan assets regulation applies items are sent to any stockholders of the investment in the SecuritiesCompany, Purchaser and copies of any information or documents sent by the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits stockholders.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bankwell Financial Group, Inc.)
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company's Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury's option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available; To the extent that the Company informed the Treasury on the Signing Date that it does not prepare financial statements in accordance with GAAP in the ordinary course, thatthe Treasury may consider other annual financial reporting packages acceptable to it in its sole discretion.1
(B) as soon as available after the end of the first, as second and third quarterly periods in each fiscal year of the Company, a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company's internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation from disclosing to Treasury);
(D) annually on a date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of how the Company has utilized the funds the Company received hereunder in connection with the sale of the Preferred Shares and the effects of such funds on the operations and status of the Company;
(E) as soon as such items become effective, any amendments to the Charter, bylaws or a judicial other organizational documents of the Company; and
(F) at the same time as such items are sent to any stockholders of the Company, copies of any information or administrative interpretation of applicable law or regulation, it is reasonably determined documents sent by the Company to its stockholders. __________________________ 1 To the extent that the rights afforded pursuant to this Section 3.2 are Company informed the Treasury on the Signing Date that it does not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment prepare financial statements in accordance with GAAP in the Securitiesordinary course, Purchaser and the Company shall cooperate Treasury may consider other annual financial reporting packages acceptable to it in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits sole discretion.
(biii) Each party Treasury will use reasonable best efforts to this Agreement will hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury's information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury's right to receive certifications from the Company pursuant to Section 3.1(d) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (Heartland Financial Usa Inc)
Access, Information and Confidentiality. (a) For so long From the date hereof until the date when the Securities purchased pursuant to this Agreement and held by Purchaser represent less than 5% of the outstanding Common Stock (counting as shares owned by Purchaser owns all Converted Common Shares and assuming that to the extent Purchaser shall purchase any Securitiesadditional shares of Common Stock, any later sales of Common Stock by Purchaser shall be deemed to be shares other than Securities to the extent of such additional purchases) (the “Qualifying Ownership Interest”), the Company will (i) permit Purchaser to visit and inspect, at Purchaser’s expense, the properties of the Company and the Company Subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary to disclose any information to the extent (xi) prohibited by applicable law or regulation, (yii) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (ziii) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (ziii) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(b) Each party to this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or party, its representatives or any Board Observer pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsadvisors and as permitted by Section 4.1(f).
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined how the Company has utilized the funds the Company received hereunder in connection with the sale of the Preferred Shares and the effects of such funds on the operations and status of the Company;
1 To the extent that the rights afforded pursuant to this Section 3.2 are Company informed the Treasury on the Signing Date that it does not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment prepare financial statements in accordance with GAAP in the Securitiesordinary course, Purchaser and the Company shall cooperate Treasury may consider other annual financial reporting packages acceptable to it in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits sole discretion.
(bE) Each party as soon as such items become effective, any amendments to this Agreement the Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such items are sent to any stockholders of the Company, copies of any information or documents sent by the Company to its stockholders.
(iii) Treasury will use reasonable best efforts to hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Samples: Securities Purchase Agreement (First Northern Community Bancorp)
Access, Information and Confidentiality. (ai) For so long as Purchaser owns any SecuritiesFrom the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will (i) permit Purchaser permit, and shall cause each of the Company’s Subsidiaries to visit and inspectpermit, at Purchaser’s expenseTreasury, the properties of the Company Oversight Officials and the Company Subsidiariestheir respective agents, consultants, contractors and advisors to (x) examine the corporate books any books, papers, records, Tax returns (including all schedules attached thereto), data and to other information; (y) make copies thereof; and (z) discuss the affairs, finances and accounts of the Company and the Company Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf personnel of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, available periodically all upon reasonable notice; provided, that:
(A) any examinations and at such times as reasonably requested by Purchaser for consultation with Purchaser or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation discussions pursuant to this Section 3.2 3.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require ;
(B) neither the Company or nor any Company Subsidiary shall be required by this Section 3.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation, or (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser or its Affiliates to compete with the Company and Company Subsidiaries), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (zB) apply). In ;
(C) the eventobligations of the Company and the Company Subsidiaries to disclose information pursuant to this Section 3.1(c)(i) to any Oversight Official or any agent, consultant, contractor and advisor thereof, such Oversight Official shall have agreed, with respect to documents obtained under this Section 3.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting input from the Company as to information that should be afforded confidentiality, as appropriate; and
(D) for avoidance of doubt, such examinations and discussions may, at Treasury’s option, be conducted on site at any office of the Company or any Company Subsidiary.
(ii) From the Signing Date until the date on which all of the Preferred Shares have been redeemed in whole, the Company will deliver, or will cause to be delivered, to Treasury:
(A) as soon as available after the end of each fiscal year of the Company, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company for such year, in each case prepared in accordance with GAAP applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year of the Company and which shall be audited to the extentextent audited financial statements are available;1
(B) as soon as available after the end of the first, thatsecond and third quarterly periods in each fiscal year of the Company, as a result copy of any change in quarterly reports provided to other stockholders of the Company or Company management by the Company;
(C) as soon as available after the Company receives any assessment of the Company’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Company is prohibited by applicable law or regulation or from disclosing to Treasury);
(D) annually on a judicial or administrative interpretation date specified by Treasury, a completed survey, in a form specified by Treasury, providing, among other things, a description of applicable law or regulation, it is reasonably determined how the Company has utilized the funds the Company received hereunder in connection with the sale of the Preferred Shares and the effects of such funds on the operations and status of the Company; 1 To the extent that the rights afforded pursuant to this Section 3.2 are Company informed the Treasury on the Signing Date that it does not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment prepare financial statements in accordance with GAAP in the Securitiesordinary course, Purchaser and the Company shall cooperate Treasury may consider other annual financial reporting packages acceptable to it in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulationsits sole discretion.
(bE) Each party as soon as such items become effective, any amendments to this Agreement the Charter, bylaws or other organizational documents of the Company; and
(F) at the same time as such items are sent to any stockholders of the Company, copies of any information or documents sent by the Company to its stockholders.
(iii) Treasury will use reasonable best efforts to hold, and will use reasonable best efforts to cause its respective Affiliates agents, consultants, contractors and their directors, officers, advisors and United States executive branch officials and employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, confidence all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto Company furnished or made available to it by such other party the Company or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1A) previously known by such party on a non-confidential basis, (2B) in the public domain through no fault of such party or (3C) later lawfully acquired from other sources by the party to which it was furnishedfurnished (and without violation of any other confidentiality obligation)); provided that nothing herein shall prevent Treasury from disclosing any Information to the extent required by applicable laws or regulations or by any subpoena or similar legal process. Treasury understands that the Information may contain commercially sensitive confidential information entitled to an exception from a Freedom of Information Act request.
(iv) Treasury’s information rights pursuant to Section 3.1(c)(ii)(A), (B), (C), (E) and neither party hereto (F) and Treasury’s right to receive certifications from the Company pursuant to Section 3.1(d)(i) may be assigned by Treasury to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to 2% of the initial aggregate liquidation preference of the Preferred Shares.
(v) Nothing in this Section shall release be construed to limit the authority that any Oversight Official or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsapplicable regulatory authority has under law.
(vi) The Company shall provide to Treasury all such information as Treasury may request from time to time for the purpose of carrying out the study required by Section 4112 of the SBJA.
Appears in 1 contract
Access, Information and Confidentiality. (ai) For so long as Purchaser any Institutional Investor owns any SecuritiesConvertible Preferred Stock convertible into, or Conversion Securities representing, at least 4.9% of the outstanding shares of Common Stock (in each case treating each Conversion Security that is not a share of Common Stock as if it had converted into Common Stock), the Company will (iA) permit Purchaser such Institutional Investor to visit and inspect, at Purchasersuch Institutional Investor’s expense, the properties of the Company and the Company Subsidiariesits subsidiaries, to examine the corporate books and to discuss the affairs, finances and accounts of the Company and the Company Subsidiaries its subsidiaries with the principal officers personnel of the Company, all upon reasonable notice and at such reasonable times and as often as Purchaser such Institutional Investor may reasonably request, (ii) deliver to Purchaser, simultaneously with its delivery to the Company’s senior management, (A) the monthly financial reporting package delivered to the Company’s senior management and (B) any other periodic financial reports prepared by or on behalf make appropriate officers of the Company and the Company’s Subsidiaries for the senior management of the Company, (iii) make appropriate officers and directors of the Company, and Company Subsidiaries, its subsidiaries available periodically and at such times as reasonably requested by Purchaser such Institutional Investor for consultation with Purchaser such Institutional Investor or its designated representative with respect to matters relating to the business and affairs of the Company and Company Subsidiaries and (iv) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following subsidiaries of the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Purchaser or its designated representative in advance with respect to any significant corporate actions, and to provide the Purchaser or its designated representative with the right to consult with the Company and Company Subsidiaries with respect to such actions. Any investigation pursuant to this Section 3.2 6(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Company, and nothing herein shall require the Company or any Company Subsidiary of its subsidiaries to disclose any information to the extent (x) prohibited by applicable law or regulation, (y) that the Company reasonably believes such information to be competitively sensitive proprietary information (except to the extent Purchaser such Institutional Investor provides assurances reasonably acceptable to the Company that such information shall not be used by Purchaser such Institutional Investor or its Affiliates to compete with the Company and Company Subsidiariesthe subsidiaries of the Company), or (z) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Company or any subsidiary of the Company Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any subsidiary of the Company Subsidiary (provided that the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (z) apply). In the event, and to the extent, that, as a result of any change in applicable law or regulation or a judicial or administrative interpretation of applicable law or regulation, it is reasonably determined that the rights afforded pursuant to this Section 3.2 are not sufficient for purposes of the Department of Labor’s “plan assets” regulations, to the extent such plan assets regulation applies to the investment in the Securities, Purchaser and the Company shall cooperate in good faith to agree upon mutually satisfactory management access and information rights which satisfy such regulations.
(bii) Each party Institutional Investor covenants and agrees to hold all such information obtained under this Agreement will hold, and will cause its respective Affiliates and their directors, officers, employees, agents, consultants and advisors to hold, Section 6(i) in strict confidence, unless disclosure to a regulatory authority is necessary or appropriate in connection with any necessary regulatory approval or unless disclosure is required by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party hereto furnished to it by such other party or its representatives confidence pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party or (3) later lawfully acquired from other sources by the party to which it was furnished), and neither party hereto shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, other consultants and advisorsConfidentiality Agreement.
Appears in 1 contract
