Access to Information; Books and Records. (a) From the date of this Agreement until the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized Representatives, upon reasonable advance written notice and during regular business hours, reasonable access to the Books and Records; provided that any such access shall be conducted at such Purchaser’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of the Company. (b) Notwithstanding Section 5.02(a), during the period prior to the Closing, the Company shall have no obligation under this Agreement to make available to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including the Company), (ii) any Tax Return filed by Seller or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty. (c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company) and (ii) as promptly as practicable following the Closing, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which time, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller shall, and shall cause its Affiliates to, (i) provide the Company and the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and (ii) make available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and any Purchaser, the Company, the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of Seller or its Affiliates. (d) In addition to the provisions of (i) Section 5.02(e) and (ii) the Amended and Restated Operating Agreement, from and after the Closing Date, in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company shall, and shall cause the Company Subsidiaries to, (i) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (iii) make available to Seller, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf of Seller or its Affiliates or Representatives in connection with this Section 5.02(d). (e) Notwithstanding the provisions of Section 5.02(c), Seller and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one hand, and the Company or any of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Laws; provided, that such retained copies shall only be used by Seller and its Affiliates for any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliates. (f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. (g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and procedures. (h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement. (i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”). (j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (American International Group Inc)
Access to Information; Books and Records. (a) From and after the date hereof until the earlier of the Closing Date or the termination of this Agreement until the Closing DateAgreement, Seller shall, and shall cause the Company and the Company Subsidiaries their Affiliates to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior afford to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser Buyer and its authorized Representatives, Representatives reasonable access upon reasonable advance written notice and during regular normal business hourshours to all of the properties, reasonable access to the facilities, Books and Records; provided , contracts, personnel and officers of the Acquired Companies and, during such period, Seller shall, and shall cause their Affiliates, to furnish to Buyer such information that relates to the Acquired Companies and their businesses, properties, financial condition, operations, and personnel as Buyer may from time to time reasonably request, other than any such access shall be conducted at such Purchaser’s expenseproperties, in accordance with applicable Law (including any applicable Law relating to antitrustbooks, competitioncontracts, employment or privacy issues)records, and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of the Company.
(b) Notwithstanding Section 5.02(a), during the period prior to the Closing, the Company shall have no obligation under this Agreement to make available to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of information that (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including the Company), (ii) any Tax Return filed by Seller or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect are subject to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any an attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine that might be impaired by such disclosure or (Bii) contravene any applicable Law, Judgment or any fiduciary dutyare subject to an obligation of confidentiality, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (xA) cooperate with any requests for, and use its reasonable best efforts to obtain any, any waivers and (yB) use its their reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), ) in each case, that would enable any otherwise required to disclosure to a Purchaser Buyer to occur without so jeopardizing any such privilege or immunity or contravening contravene such applicable Lawobligation of confidentiality. All requests for access or information pursuant to this Section 5.2 shall be directed to such Person or Persons as Seller shall designate. For the avoidance of doubt, Judgment or fiduciary dutythe exercise by Buyer of its rights under this Section 5.2(a) shall not constitute a breach of the Confidentiality Agreement.
(cb) Except as contemplated by the Separation Plan, as agreed On or prior to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall transfer, or cause all to be transferred, to Buyer (i) the Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company) Acquired Companies and (ii) as promptly as practicable following all original corporate records of the Acquired Companies relating to the legal existence, ownership and corporate governance of the Acquired Companies and all Permits of the Acquired Companies, in each case, that are not otherwise possessed or controlled by the Acquired Companies. Prior to the Closing, Seller and Buyer shall use reasonable best efforts cooperate in good faith to cause any Books develop and Records implement a plan that will result in the control (but not possession at Closing) delivery or transfer of Seller or any of its Affiliates (all other than the Company) to be delivered to the Company or in the alternative to one or more books and records of the Company Subsidiaries (as may be directed by Acquired Companies to Buyer or the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed Acquired Companies on or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which time, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller shall, and shall cause its Affiliates to, (i) provide the Company and the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and (ii) make available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and any Purchaser, the Company, the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
(d) In addition to the provisions of (i) Section 5.02(e) and (ii) the Amended and Restated Operating Agreement, from and after the Closing Date, in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company shall, and shall cause the Company Subsidiaries to, (i) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time Closing. Subject to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (iii) make available to Seller, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposes5.9(b), except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred as otherwise required by the Company and the Company Subsidiaries in complying with any request by or on behalf of Seller or its Affiliates or Representatives in connection with this Section 5.02(d).
(e) Notwithstanding the provisions of Section 5.02(c)applicable Law, Seller and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries Acquired Companies and their respective businesses business relating to periods ending on or prior to the Closing Date Date.
(c) For a period of five (5) years following the Closing Date, Buyer shall: (i) allow Seller and its Representatives, upon reasonable prior notice (email being sufficient) and during normal business hours, the right, to examine and make copies, of any Books and Records which were transferred to Buyer or its Affiliates at or after the Closing pursuant to Section 5.2(b) and any other books and records prepared by Buyer or any Affiliate of Buyer relating to information (including employment the business of the Acquired Companies that would have been included in the Books and medical records) regarding Records had they been in existence at the Employees, Closing of which neither Seller nor any of its Affiliates has retained a copy and (ii) as required by allow Seller to interview Buyer’s and its Affiliates’ Representatives for any legal or regulatory authorityreasonable business purpose relating to the business of the Acquired Companies, including in connection with Seller’s preparation or examination of regulatory and statutory filings and financial statements, and the conduct of any applicable Law litigation relating to the business of the Acquired Companies (other than any litigation or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement dispute between Seller and or its Affiliates, on the one hand, and the Company Buyer or any of the Company Subsidiariesits Affiliates, on the other hand), that will remain in effect after or the Closing, in each case subject to compliance with all applicable privacy Laws; provided, that such retained copies shall only be used by Seller and its Affiliates for conduct of any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statementscontractholder, Tax Returns reinsurer or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliates.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein dispute resolution or any other Transaction AgreementThird Party Claim, to the extent that Seller whether pending or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and proceduresthreatened.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
Appears in 1 contract
Access to Information; Books and Records. (a) From and after the date Closing, for a period of seven (7) years, and without prejudice to the obligations of Purchaser pursuant to Section 7.4(e), Purchaser and its Affiliates shall (i) afford the Seller Group and their respective representatives reasonable access, during normal business hours, upon reasonable advance notice and under reasonable circumstances, to the books and records of Purchaser only as they relate to the Business (ii) permit the Seller Group and their respective representatives to examine and copy such books and records only as they relate to the Business to the extent reasonably requested by such party and (iii) cause their representatives to furnish all information related to the Business reasonably requested by any member of the Seller Group or their representatives in connection with financial or regulatory reporting, audit, third party litigation, preparing or filing of any Tax Return or the defense of any Tax claim or assessment or any other business purpose; provided, however, that nothing in this Agreement until Section 7.1 shall require Purchaser or its Affiliates to furnish to the Seller Group or their respective representatives any material that is subject to an attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege or which may not be disclosed pursuant to applicable Law. For a period of six years following the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized Representatives, upon reasonable advance written notice and during regular business hours, reasonable access to the Books and Records; provided that any or such access shall be conducted at such Purchaser’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of the Company.
(b) Notwithstanding Section 5.02(a), during the longer period prior to the Closing, the Company shall have no obligation under this Agreement to make available to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including the Company), (ii) any Tax Return filed by Seller or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty.
(c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed required by the Company) and (ii) as promptly as practicable following the Closing, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which timeor necessitated by applicable statutes of limitations, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller Purchaser shall, and shall cause its Affiliates to, maintain all such books and records in the jurisdiction in which such books and records were located prior to the Closing Date and shall not destroy, alter or otherwise dispose of any such books and records.
(ib) provide From the Company date of this Agreement and for a period of three years following the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and Closing, Seller shall keep confidential any non-public information in its possession (ii) make other than information which was or becomes available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates on a non-confidential basis from a source other than Purchaser or any of its Affiliates, on ) relating to the one hand, and any PurchaserBusiness, the Company, Transferred Assets and the Company Subsidiaries or their Affiliates, on the other handAssumed Liabilities; provided, however, that such access the Seller shall not unreasonably interfere be liable hereunder with respect to any disclosure to the business extent such disclosure is required pursuant to the bankruptcy Code or operations other applicable Law, legal process (including pursuant to the assertion of Seller’s rights under this Agreement) (by interrogatories, subpoena, civil investigative demand or similar process), regulatory process or request, or to the extent such disclosure is reasonably necessary for purposes of compliance by Seller or its Affiliates.
(d) In addition Affiliates with tax or regulatory reporting requirements; provided that in the event of any such disclosure pursuant to the provisions of this Section 7.1(b), Seller shall (i) Section 5.02(e) provide Purchaser reasonably prompt written notice of the existence, terms and circumstances surrounding such disclosure and (ii) exercise commercially reasonable efforts to preserve the Amended and Restated Operating Agreement, from and after confidentiality of the Closing Date, in connection with any reasonable business purposenon-public information disclosed, including by cooperating with Purchaser (xat Purchaser’s sole cost) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns obtain an appropriate protective order or other documents related to Tax matters or (z) reliable assurance that confidential treatment will be accorded the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company shall, and shall cause the Company Subsidiaries to, (i) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (including, for the avoidance of doubt, Tax Returns and other non-public information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (iii) make available to Seller, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf of Seller or its Affiliates or Representatives in connection with this Section 5.02(d).
(e) Notwithstanding the provisions of Section 5.02(c), Seller and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one hand, and the Company or any of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Laws; provided, that such retained copies shall only be used by Seller and its Affiliates for any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliatesbe disclosed.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and procedures.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Ebix Inc)
Access to Information; Books and Records. (a) From and after the date Closing, for a period of seven (7) years, and without prejudice to the obligations of Purchaser pursuant to Section 7.4(e), Purchaser and its Affiliates shall (i) afford the Seller Group and their respective representatives reasonable access, during normal business hours, upon reasonable advance notice and under reasonable circumstances, to the books and records of Purchaser only as they relate to the Business (ii) permit the Seller Group and their respective representatives to examine and copy such books and records only as they relate to the Business to the extent reasonably requested by such party and (iii) cause their representatives to furnish all information related to the Business reasonably requested by any member of the Seller Group or their representatives in connection with financial or regulatory reporting, audit, third party litigation, preparing or filing of any Tax Return or the defense of any Tax claim or assessment or any other business purpose; provided, however, that nothing in this Agreement until Section 7.1 shall require Purchaser or its Affiliates to furnish to the Seller Group or their respective representatives any material that is subject to an attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege or which may not be disclosed pursuant to applicable Law. For a period of six years following the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized Representatives, upon reasonable advance written notice and during regular business hours, reasonable access to the Books and Records; provided that any or such access shall be conducted at such Purchaser’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of the Company.
(b) Notwithstanding Section 5.02(a), during the longer period prior to the Closing, the Company shall have no obligation under this Agreement to make available to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including the Company), (ii) any Tax Return filed by Seller or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty.
(c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed required by the Company) and (ii) as promptly as practicable following the Closing, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which timeor necessitated by applicable statutes of limitations, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller Purchaser shall, and shall cause its Affiliates to, maintain all such books and records in the jurisdiction in which such books and records were located prior to the Closing Date and shall not destroy, alter or otherwise dispose of any such books and records.
(ib) provide From the Company Original Agreement Date and for a period of three years following the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and Closing, Seller shall keep confidential any non-public information in its possession (ii) make other than information which was or becomes available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates on a non-confidential basis from a source other than Purchaser or any of its Affiliates, on ) relating to the one hand, and any PurchaserBusiness, the Company, Transferred Assets and the Company Subsidiaries or their Affiliates, on the other handAssumed Liabilities; provided, however, that such access the Seller shall not unreasonably interfere be liable hereunder with respect to any disclosure to the business extent such disclosure is required pursuant to the bankruptcy Code or operations other applicable Law, legal process (including pursuant to the assertion of Seller’s rights under this Agreement) (by interrogatories, subpoena, civil investigative demand or similar process), regulatory process or request, or to the extent such disclosure is reasonably necessary for purposes of compliance by Seller or its Affiliates.
(d) In addition Affiliates with tax or regulatory reporting requirements; provided that in the event of any such disclosure pursuant to the provisions of this Section 7.1(b), Seller shall (i) Section 5.02(e) provide Purchaser reasonably prompt written notice of the existence, terms and circumstances surrounding such disclosure and (ii) exercise commercially reasonable efforts to preserve the Amended and Restated Operating Agreement, from and after confidentiality of the Closing Date, in connection with any reasonable business purposenon-public information disclosed, including by cooperating with Purchaser (xat Purchaser’s sole cost) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns obtain an appropriate protective order or other documents related to Tax matters or (z) reliable assurance that confidential treatment will be accorded the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company shall, and shall cause the Company Subsidiaries to, (i) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (including, for the avoidance of doubt, Tax Returns and other non-public information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (iii) make available to Seller, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf of Seller or its Affiliates or Representatives in connection with this Section 5.02(d).
(e) Notwithstanding the provisions of Section 5.02(c), Seller and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one hand, and the Company or any of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Laws; provided, that such retained copies shall only be used by Seller and its Affiliates for any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliatesbe disclosed.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and procedures.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Ebix Inc)
Access to Information; Books and Records. From and after the Closing, Purchaser and its Affiliates shall (ai) From afford the date Seller Group and their respective representatives reasonable access, during normal business hours, upon reasonable advance notice and under reasonable circumstances, to the books and records of Purchaser and the Business shall permit the Seller Group and their respective representatives to examine and copy such books and records to the extent reasonably requested by such party and (ii) cause their representatives to furnish all information reasonably requested by any member of the Seller Group or their representatives in connection with financial or regulatory reporting, audit, third party litigation, preparing or filing of any Tax Return or the defense of any Tax claim or assessment or any other business purpose; provided, however, that nothing in this Agreement until Section 7.1 shall require Purchaser or its Affiliates to furnish to the Seller Group or their respective representatives any material that is subject to an attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege or which may not be disclosed pursuant to Applicable Law. For a period of six (6) years following the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized Representatives, upon reasonable advance written notice and during regular business hours, reasonable access to the Books and Records; provided that any or such access shall be conducted at such Purchaser’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of the Company.
(b) Notwithstanding Section 5.02(a), during the longer period prior to the Closing, the Company shall have no obligation under this Agreement to make available to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including the Company), (ii) any Tax Return filed by Seller or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty.
(c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed required by the Company) and (ii) as promptly as practicable following the ClosingApplicable Law or necessitated by applicable statutes of limitations, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which time, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller Purchaser shall, and shall cause its Affiliates to, (i) provide maintain all such books and records in the Company jurisdiction in which such books and the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and (ii) make available records were located prior to the Company Closing Date and the Company Subsidiaries and their Representatives the employees shall not destroy, alter or otherwise dispose of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, books and any Purchaser, the Company, the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
(d) In addition to the provisions of (i) Section 5.02(e) and (ii) the Amended and Restated Operating Agreement, from records. On and after the Closing Dateend of such period, in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company Purchaser shall, and shall cause the Company Subsidiaries its Affiliates to, (i) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), (ii) furnish to provide the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (iii) make available to Seller, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere with the business or operations of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf of Seller or its Affiliates or Representatives in connection with this Section 5.02(d).
(e) Notwithstanding the provisions of Section 5.02(c), Seller and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one hand, and the Company or any of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Laws; provided, that such retained copies shall only be used by Seller and its Affiliates for any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ ten Business Days prior written notice before destroying, altering or otherwise disposing any such books and records, during which period the Seller may elect to take possession, at its own expense, of such disposition books and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliatesrecords.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and procedures.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Eiger BioPharmaceuticals, Inc.)
Access to Information; Books and Records. (a) From Until the date earlier of this Agreement until the closure of the Bankruptcy Cases and two (2) years after the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized RepresentativesAffiliates shall (i) afford the Sellers and their representatives reasonable access, during normal business hours, upon reasonable advance written notice and during regular business hoursunder reasonable circumstances, reasonable access to the Books books and Records; provided records of the Business to the extent relating to periods prior to the Closing for purposes relating to the Bankruptcy Cases or the wind-down of the operations of the Casa Seller and shall permit the Sellers and their representatives to examine and copy such books and records to the extent reasonably requested by the Sellers for such purpose, provided, that any such access shall be conducted at subject to any reasonable limitations resulting from any Public Health Measures, and (A) all requests for access shall be directed to Xxxx Xxxxxxxx (xxxx.xxxxxxxx@xxxxxx.xxx, with a copy to (which will not constitute notice) xxxxxxxxx@xxxxxx.xxx) or such Purchaser’s expense, other person as Purchaser may designate in accordance with applicable Law writing from time to time (including any applicable Law relating to antitrust, competition, employment or privacy issuesthe “Purchaser Access Contact”), and in (B) such a manner as to maintain confidentiality and activities do not to unreasonably interfere with the normal ongoing business or operations of the Company.
Business or Purchaser, and (bC) Notwithstanding Purchaser shall have the right to have one or more of its representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.02(a7.1(a), during and (ii) cause its representatives to furnish all information reasonably requested by the period Sellers or their representatives in connection with financial or regulatory reporting, audit, third party litigation, preparing or filing of any Tax Return or the defense of any Tax claim or assessment or any other business purpose in connection with the Business or the Transactions to the extent relating to periods prior to the Closing; provided, however, that nothing in this Section 7.1 shall require Purchaser to furnish to the Company shall have no obligation under this Agreement Sellers or their respective representatives any material that (A) is subject to make available an attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege, (B) may not be disclosed pursuant to applicable Law, (C) is pertinent to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including litigation in which the Company), (ii) any Tax Return filed by Seller Sellers or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty.
(c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company) and (ii) as promptly as practicable following the Closing, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which time, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller shall, and shall cause its Affiliates to, (i) provide the Company and the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and (ii) make available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and Purchaser or any Purchaser, the Company, the Company Subsidiaries or their of its Affiliates, on the other hand; provided, howeverare engaged, that such access shall not unreasonably interfere (D) constitutes Personal Information other than in compliance with the business Privacy Requirements or operations of Seller (E) legal counsel for Purchaser reasonably concludes may give rise to antitrust or its Affiliatescompetition law issues or violate a protective order.
(db) In addition The Sellers acknowledge that they and their Subsidiaries and Affiliates are aware of Business Confidential Information and that the disclosure of such Business Confidential Information to the provisions of (i) Section 5.02(e) third parties could be detrimental to Purchaser and (ii) the Amended and Restated Operating Agreement, its Affiliates. The Sellers covenant that from and after the Closing Dateand for so long as the Business Confidential Information otherwise remains confidential, it will not, and will direct its Subsidiaries and Affiliates not to, disclose such Business Confidential Information without Purchaser’s prior written consent, except as may be required in connection with any reasonable business purposepublic reporting Laws and obligations, including the Securities and Exchange Act of 1934, as amended, provided that the Sellers have complied with all of the requirements of Section 7.1(d). If requested or required in connection with a legal proceeding or investigation by a Governmental Authority (xby oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) in response to disclose any Business Confidential Information, the Sellers agree to provide Purchaser with prompt written notice of such request so as to allow Purchaser (at Purchaser’s sole cost and expense) to seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, the Sellers or their representatives are, as advised by the Sellers’ counsel, required to disclose Business Confidential Information, the Sellers shall disclose only that portion of such information as is legally required; provided, that the Sellers will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such information if requested by Xxxxxxxxx and at Purchaser’s sole cost and expense.
(c) After the Closing, and without limiting the generality of Section 7.1(b) and without prejudice to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or Sellers pursuant to this AgreementSection 7.1(a), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company Sellers shall, and shall cause use commercially reasonable efforts to ensure that their employees: (a) hold in confidence, using at least the Company Subsidiaries tosame degree of care that the Sellers use to protect their own confidential information, but in no event less than a reasonable degree of care, all trade secrets and confidential information included in the Transferred Intellectual Property; (ib) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (includingnot use or otherwise exploit, for the avoidance of doubtany purpose, Tax Returns and other information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) any Transferred Intellectual Property; and (iiic) make available not disclose any trade secrets or confidential information included in the Transferred Intellectual Property to Sellerany third Person, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposeswithout Purchaser’s prior written consent, except in connection with any litigation or dispute between Seller or its Affiliatesrequirements of applicable Law, on provided that the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere Sellers have complied with the business or operations all of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf requirements of Seller or its Affiliates or Representatives in connection with this Section 5.02(d7.1(d).
(ed) Notwithstanding If the Sellers are required under applicable Law, or requested or required in connection with a legal proceeding or investigation by a Governmental Authority (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) to disclose any Business Confidential Information, or any trade secret or confidential information included in the Transferred Intellectual Property, the Sellers agree to provide Purchaser with prompt written notice of such requirement or request so as to allow Purchaser (at Purchaser’s sole cost and expense) to seek an appropriate protective order and/or waive compliance with the provisions of Section 5.02(c)this Agreement. If, Seller failing the entry of a protective order or the receipt of a waiver hereunder, the Sellers or their representatives are, as advised by the Sellers’ counsel, required to disclose any Business Confidential Information, or any trade secret or confidential information included in the Transferred Intellectual Property, the Sellers shall notify Purchaser of the planned disclosure and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one handscope, and may disclose only the Company or any minimum portion of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Lawssuch information as is legally required; provided, that such retained copies shall only be used by Seller and its Affiliates for any the Sellers will exercise commercially reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliates.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) assurance that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening confidential treatment will be accorded such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required if requested by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller at Purchaser’s sole cost and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and procedures.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).expense
Appears in 1 contract
Access to Information; Books and Records. (a) From Until the date earlier of this Agreement until the closure of the Bankruptcy Cases and two (2) years after the Closing Date, Seller shall, and shall cause the Company and the Company Subsidiaries to, maintain the Books and Records in all material respects in the same manner and with the same care that the Books and Records have been maintained prior to the execution of this Agreement. From the date of this Agreement until the Closing Date, the Seller shall cause the Company to give each Purchaser and its authorized RepresentativesAffiliates shall (i) afford the Sellers and their representatives reasonable access, during normal business hours, upon reasonable advance written notice and during regular business hoursunder reasonable circumstances, reasonable access to the Books books and Records; provided records of the Business to the extent relating to periods prior to the Closing for purposes relating to the Bankruptcy Cases or the wind-down of the operations of the Casa Seller and shall permit the Sellers and their representatives to examine and copy such books and records to the extent reasonably requested by the Sellers for such purpose, provided, that any such access shall be conducted at such Purchaser’s expense, in accordance with applicable Law (including subject to any applicable Law relating to antitrust, competition, employment or privacy issues)reasonable limitations resulting from any Public Health Measures, and (A) all requests for access shall be directed to Xxxxx Xxxxxxxxx (xxxxx.xxxxxxxxx@xxxxxxxxx.xxx, with a copy to (which will not constitute notice) xxxxxxxxxxxx@xxxxxxxxx.xxx)or such other person as Purchaser may designate in writing from time to time, (B) such a manner as to maintain confidentiality and activities do not to unreasonably interfere with the normal ongoing business or operations of the Company.
Business or Purchaser, and (bC) Notwithstanding Purchaser shall have the right to have one or more of its representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.02(a7.1(a), during and (ii) cause its representatives to furnish all information reasonably requested by the period Sellers or their representatives in connection with financial or regulatory reporting, audit, third party litigation, preparing or filing of any Tax Return or the defense of any Tax claim or assessment or any other business purpose in connection with the Business or the Transactions to the extent relating to periods prior to the Closing; provided, however, that nothing in this Section 7.1 shall require Purchaser to furnish to the Company shall have no obligation under this Agreement Sellers or their respective representatives any material that (A) is subject to make available an attorney-client or solicitor-client privilege or an attorney or solicitor work-product privilege, (B) may not be disclosed pursuant to applicable Law, (C) is pertinent to any Purchaser or its Representatives, or to provide any Purchaser or its Representatives with access to or copies of (i) any personnel file, medical file or related records of any employee of Seller or its Affiliates (including litigation in which the Company), (ii) any Tax Return filed by Seller Sellers or any of its Affiliates (other than the Company) or predecessors, or any related material (except solely for Tax records of, or solely with respect to, Fortitude Re, including pro forma copies of Tax Returns prepared solely with respect to Fortitude Re) or (iii) any other information if Seller determines, in its reasonable judgment, that making such information available would (A) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine or (B) contravene any applicable Law, Judgment or any fiduciary duty, it being understood that with respect to the items described in the preceding clauses (i) through (iii), Seller and the Company shall (x) cooperate with any requests for, and use its reasonable best efforts to obtain any, waivers and (y) use its reasonable best efforts to make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to a Purchaser to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Judgment or fiduciary duty.
(c) Except as contemplated by the Separation Plan, as agreed to by the Carve-out Committee or as provided in accordance with another Transaction Agreement, (i) at the Closing, Seller shall cause all Books and Records in the possession of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company) and (ii) as promptly as practicable following the Closing, Seller shall use reasonable best efforts to cause any Books and Records in the control (but not possession at Closing) of Seller or any of its Affiliates (other than the Company) to be delivered to the Company or in the alternative to one or more of the Company Subsidiaries (as may be directed by the Company). Notwithstanding the foregoing, Seller and its Affiliates shall not be required to transfer any Books and Records that are not permitted to be disclosed or transferred under applicable Law until such time as such Books and Records are permitted to be transferred (at which time, without further request, such Books and Records shall be transferred to the Company, or if the Company so directs, to one or more Company Subsidiaries). In addition to the provisions of the Amended and Restated Operating Agreement, from and after the Closing Date, subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, in connection with any reasonable business purpose, Seller shall, and shall cause its Affiliates to, (i) provide the Company and the Company Subsidiaries and their Representatives reasonable access to such retained Books and Records and (ii) make available to the Company and the Company Subsidiaries and their Representatives the employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Company, the Company Subsidiaries or their Representatives in connection with the Company’s, the Company Subsidiaries’ or such Representatives’ inquiries for any such reasonable business purposes, including the presence of such persons as witnesses in hearings or trials for such purposes, except in connection with any litigation or dispute between Seller or its Affiliates, on the one hand, and Purchaser or any Purchaser, the Company, the Company Subsidiaries or their of its Affiliates, on the other hand; provided, howeverare engaged, that such access shall not unreasonably interfere (D) constitutes Personal Information other than in compliance with Privacy Requirements, (E) legal counsel for Purchaser reasonably concludes may give rise to antitrust or competition law issues or violate a protective order, or (F) is or relates to any Tax Return of Purchaser or any of its Affiliates unless it reflects solely information related to the business Transferred Assets, the Assumed Liabilities or operations of Seller or its Affiliatesthe Business.
(db) In addition The Sellers acknowledge that they and their Subsidiaries and Affiliates are aware of Business Confidential Information and that the disclosure of such Business Confidential Information to the provisions of (i) Section 5.02(e) third parties could be detrimental to Purchaser and (ii) the Amended and Restated Operating Agreement, its Affiliates. The Sellers covenant that from and after the Closing Dateand for so long as the Business Confidential Information otherwise remains confidential, they will not, and will direct their Subsidiaries and Affiliates not to, disclose such Business Confidential Information without Purchaser’s prior written consent, except as may be required in connection with any reasonable business purposepublic reporting Laws and obligations, including the Securities and Exchange Act of 1934, as amended, provided that the Sellers have complied with all of the requirements of Section 7.1(d). If requested or required in connection with a legal proceeding or investigation by a Governmental Authority (xby oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) in response to disclose any Business Confidential Information, the Sellers agree to provide Purchaser with prompt written notice of such request so as to allow Purchaser (at Purchaser’s sole cost and expense) to seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, the Sellers or their representatives are, as advised by the Sellers’ counsel, required to disclose Business Confidential Information, the Sellers shall disclose only that portion of such information as is legally required; provided, that the Sellers will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such information if requested by Xxxxxxxxx and at Purchaser’s sole cost and expense.
(c) After the Closing, and without limiting the generality of Section 7.1(b) and without prejudice to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or Sellers pursuant to this AgreementSection 7.1(a), subject to Section 5.02(f), upon reasonable advance written notice and during regular business hours, the Company Sellers shall, and shall cause use commercially reasonable efforts to ensure that their employees: (a) hold in confidence, using at least the Company Subsidiaries tosame degree of care that the Sellers use to protect their own confidential information, but in no event less than a reasonable degree of care, all trade secrets and confidential information included in the Transferred Intellectual Property; (ib) give Seller and its Affiliates and Representatives reasonable access to the Books and Records in existence as of the Closing Date (includingnot use or otherwise exploit, for the avoidance of doubtany purpose, Tax Returns and other information and documents relating to Tax matters), (ii) furnish to the Seller and its Affiliates and Representatives such additional financial data and other information regarding the Company and the Company Subsidiaries and the businesses conducted by them prior to the Closing Date as Seller and its Affiliates or Representatives may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) any Transferred Intellectual Property; and (iiic) make available not disclose any trade secrets or confidential information included in the Transferred Intellectual Property to Sellerany third Person, its Affiliates and Representatives the employees of the Company and the Company Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or its Affiliates or Representatives in connection with Seller’s, such Affiliates’ or such Representatives’ inquiries for any of the purposes referred to in this Section 5.02(d) above, including the presence of such persons as witnesses in hearings or trials for such purposeswithout Purchaser’s prior written consent, except in connection with any litigation or dispute between Seller or its Affiliatesrequirements of applicable Law, on provided that the one hand, and the Company or the Company Subsidiaries or their Affiliates, on the other hand; provided, however, that such access shall not unreasonably interfere Sellers have complied with the business or operations all of the Company or the Company Subsidiaries. Seller shall reimburse the Company promptly for any reasonable out-of-pocket expenses incurred by the Company and the Company Subsidiaries in complying with any request by or on behalf requirements of Seller or its Affiliates or Representatives in connection with this Section 5.02(d7.1(d).
(ed) Notwithstanding If the Sellers are required under applicable Law, or requested or required in connection with a legal proceeding or investigation by a Governmental Authority (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) to disclose any Business Confidential Information, or any trade secret or confidential information included in the Transferred Intellectual Property, the Sellers agree to provide Purchaser with prompt written notice of such requirement or request so as to allow Purchaser (at Purchaser’s sole cost and expense) to seek an appropriate protective order and/or waive compliance with the provisions of Section 5.02(c)this Agreement. If, Seller failing the entry of a protective order or the receipt of a waiver hereunder, the Sellers or their representatives are, as advised by the Sellers’ counsel, required to disclose any Business Confidential Information, or any trade secret or confidential information included in the Transferred Intellectual Property, the Sellers shall notify Purchaser of the planned disclosure and its Affiliates shall have the right to retain copies of all Books and Records (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company and each of the Company Subsidiaries and their respective businesses relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Employees, (ii) as required by any legal or regulatory authority, including any applicable Law or regulatory request or (iii) as may be necessary for Seller and its Affiliates to perform their respective obligations pursuant to this Agreement, the Transaction Agreements or any other agreement between Seller and its Affiliates, on the one handscope, and may disclose only the Company or any minimum portion of the Company Subsidiaries, on the other hand, that will remain in effect after the Closing, in each case subject to compliance with all applicable privacy Lawssuch information as is legally required; provided, that such retained copies shall only be used by Seller and its Affiliates for any the Sellers will exercise commercially reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Following the Closing, each party shall, with respect to all Books and Records to which another party is entitled to access hereunder, (A) comply in all material respects with all applicable Laws, including the Code, relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Seller as of the date hereof and (C) for at least six (6) years after the Closing Date or until notice is received from Seller of the expiration of the applicable statute of limitations for Tax purposes, whichever is later, preserve and retain all Books and Records and thereafter dispose of the Books and Records only after it shall have given the party entitled to access such Books and Records hereunder ninety (90) days’ prior written notice of such disposition and the opportunity (at the removing party’s expense) to remove and retain such information. Notwithstanding anything in this Agreement to the contrary, Seller shall not be required to provide Purchasers, any of their Affiliates nor, following the Closing, the Company or Company Subsidiaries with any consolidated, combined or unitary Tax Returns of Seller or its Affiliates.
(f) Notwithstanding any other provision of this Agreement, a party hereto shall not be obligated to provide access to any Books and Records or information to the extent that such party determines, in its reasonable judgment, that doing so would violate Law or a Contract of confidentiality owing by such party or its Subsidiaries to a third party or jeopardize the protection of an attorney-client privilege of such party or its Subsidiaries; provided that the party contemplated to provide access shall use reasonable best efforts to obtain waivers or make other arrangements (including redacting information or entering into joint defense agreements) assurance that would enable otherwise required disclosure to the other party or its Representatives to occur without so jeopardizing privilege or contravening confidential treatment will be accorded such Law, Contract or obligation of confidentiality. The auditors and independent accountants of a party or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants.
(g) Notwithstanding anything to the contrary contained herein or any other Transaction Agreement, to the extent that Seller or any of its Affiliates has retained books, records, files, tapes, software, data, documents, hardware, storage devices or other information, materials or equipment that are not used in the operation of the business of the Company or any of the Company Subsidiaries or required if requested by the Company or any of the Company Subsidiaries for regulatory purposes (“Archived Files”) pursuant to a litigation hold or otherwise, each Purchaser acknowledges and agrees that the Archived Files are solely the property of Seller at Purchaser’s sole cost and may be used by Seller in connection with any reasonable business purpose, including (x) in response to the request or at the direction of a Governmental Entity, (y) the preparation of financial statements, Tax Returns or other documents related to Tax matters or (z) the determination of any matter relating to the rights or obligations of Seller and its Affiliates under this Agreement or any of the other Transaction Agreements (including any claim for indemnity made under or pursuant to this Agreement). Seller agrees to hold all Archived Files in accordance with applicable Law, rules, regulations and Seller’s internal document retention, compliance and business continuity policies and proceduresexpense.
(h) The parties hereto agree that, notwithstanding anything in the Confidentiality Agreement to the contrary, the terms of the Confidentiality Agreement applicable to each of them are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing (and all information exchanged pursuant to Section 5.02(a) shall be subject to the Confidentiality Agreement), at which time the Confidentiality Agreement shall terminate; provided that the remedies of the parties under the Confidentiality Agreement shall survive the termination thereof with respect to any breach arising prior to such termination. If for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. From and after the Closing, the parties hereto agree to be bound by the confidentiality provisions applicable to Members, as set forth in the Amended and Restated Operating Agreement.
(i) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar quarter and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar quarter (the “Future Company Consolidated Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited consolidated balance sheet of the Company and the Company Subsidiaries as of the end of each calendar year and (B) the related unaudited consolidated statement of income (loss) of the Company and the Company Subsidiaries for such calendar year (the “Future Company Consolidated Annual Financial Statements”, and together with the Future Company Consolidated Quarterly Financial Statements, the “Future Company Consolidated Financial Statements”).
(j) From the date hereof through the Closing Date, Seller shall make available to Purchasers when available to the Board (i) complete copies of (A) the unaudited balance sheet of Fortitude Re as of the end of each calendar quarter and (B) the related statement of income (loss) of Fortitude Re for such calendar quarter (the “Future Fortitude Re Quarterly Financial Statements”), and (ii) complete copies of (A) the unaudited balance sheet of the Fortitude Re as of the end of each calendar year and (B) the related statements of income (loss), comprehensive income (loss), shareholders’ equity and cash flows of Fortitude Re for such calendar year (the “Future Fortitude Re Annual Financial Statements”, and together with the Future Fortitude Re Quarterly Financial Statements, the “Future Fortitude Re Financial Statements”).
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