Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers shall provide to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled Affiliates. (b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above. (c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information. (d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset. (e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof. (f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof. (g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) above. (h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur of the Closing Date and or the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers Seller shall provide to Buyer Buyers and its their authorized Representatives, representatives during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all officers, key employees, advisers, properties, booksoffices, facilities and books and records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business Entities (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner so as to maintain confidentiality and not to unreasonably interfere with the normal business operations of Sellers and their Controlled Affiliates (including the Transferred SubsidiariesEntities), the Business and the other businesses of Sellers and their Controlled Affiliates.
(b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers Seller may withhold any document (or portions thereof) or information information: (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such partySeller’s counsel, constitutes a waiver of any such privilege, ; (iii) if the provision of access to such document (or portion thereof) or information, as determined by such partySeller’s counsel, would reasonably be expected to conflict with applicable Laws or Laws; (iv) that Seller reasonably determines in good faith is competitively sensitive (provided that such information may be made available for review by Buyers’ external counsel only in accordance with and subject to the restrictions contained in an agreed upon “clean room” agreement); or (v) relating to the sale process regarding the Transferred Entities or any alternative transaction with respect to all or a Parent Tax Group Returnportion of the Business, bids received from others in connection with such sale process or alternative transactions and information and analysis (including financial analysis) relating to such bids or alternative transactions. If any material is withheld pursuant to clauses (i) - (iv) of the preceding sentence, Seller shall inform Buyers as to the general nature of what is being withheld and, to the extent permissible without violating any obligations of Seller or the Transferred Entities thereunder or without waiving any privilege in respect thereof, make appropriate substitute disclosure arrangements to provide any such information in a manner that will not result in the violation of such agreement or Law or the loss of such privilege, as applicable.
(c) All information provided to Buyers pursuant to this Section 4.2 prior to the Closing shall be held by Buyers as confidential under the terms of that certain Confidentiality Agreement, dated as of October 7, 2016, between Silgan and WestRock (the “Confidentiality Agreement”) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. The parties agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of five (5) years following the Closing Date, Seller shall, and shall cause its Affiliates to, keep confidential, and not disclose or use, except as otherwise expressly permitted herein, Confidential Information; provided, however, that Seller and its Affiliates shall not be liable hereunder with respect to any disclosure to the extent such disclosure is required pursuant to applicable securities Law disclosure requirements or legal or regulatory process (by interrogatories, subpoena, civil investigative demand or similar process); provided, that, in the event of any disclosure pursuant to legal process or Law, Seller shall: (i) promptly notify Buyers in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure; and (ii) exercise commercially reasonable efforts to preserve the confidentiality of the Confidential Information disclosed, including by cooperating with Buyers to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information required to be disclosed.
(d) Buyers acknowledge and agree that Seller and its respective Affiliates shall have the right to retain copies of all books, data, files, information and records in any media of the Transferred Entities relating to periods ending on or prior to the Closing Date: (i) relating to information (including employment and medical records) regarding the Transferred Employees; (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request; or (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements, in each case subject to compliance with all applicable privacy Laws.
(e) After the Closing Date, Buyers shall, and shall cause the Transferred Entities to, until the later of the seventh (7th) anniversary of the Closing Date and the end of any retention period required by applicable Law: (i) retain all material books, records and other documents pertaining to the Business in existence on the Closing Date and make the same available for inspection and copying by Seller (at Seller’s expense) during normal business hours and in a manner so as to not interfere with the normal business operations of the Transferred Entities to the extent that such inspection and copying is reasonably necessary for Seller with respect to its defense of any Third-Party Claims for which Buyers are entitled to indemnification hereunder or in order to comply with any tax reporting obligation of Seller or its Affiliates under applicable Law or for other valid business reasons; and (ii) cause the employees, counsel and financial advisors of Buyers and their respective Affiliates to reasonably cooperate with Seller and its Affiliates in connection with their ongoing financial reporting, accounting or other purposes (including complying with Section 1502 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act) related to Seller’s ownership of the Business (including the provision of relevant parts of the books and records of any of the Transferred Entities), during normal business hours, upon reasonable request and upon reasonable notice; provided, that such withholding party shall notify in each case, Buyers and the Transferred Entities will not be required to provide access to any books, records and other party documents if: (x) doing so could violate any Contract or Law to which any Buyer or any of the nature Transferred Entities are party or subject; or (y) Buyers or any of any information so withheld and Sellers and Buyer shall work the Transferred Entities believe in good faith to make alternative arrangements to allow for such access or disclosures based on advice of counsel that doing so could result in a manner that does not result in loss of the events set out in clauses ability to successfully assert a claim of privilege (i) through (iv) above.
(h) With respect including the attorney-client and work product privileges); provided, further that, except as provided pursuant to the confidentiality agreements referenced in Section 1.3(b)(x)(B4.2(c), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)Seller shall, and shall cause their Controlled its Affiliates to, enforce keep confidential, and not disclose or use, except as otherwise expressly permitted herein, any such books, records and other documents. Buyers shall, and shall cause the terms Transferred Entities to, use commercially reasonable efforts to notify Seller prior to the destruction of any material books, records or documents by any Buyer or any of the Transferred Entities and give Seller a reasonable opportunity to obtain possession thereof after the seventh (7th) anniversary of the Closing Date.
(f) For a period of one (1) year after the Closing Date (or, if longer, for the time periods, if any, for which pro forma financial information relating to the Business is required to be disclosed pursuant to Regulation S-X under the U.S. Securities Exchange Act of 1934, as amended), each Buyer and Seller shall, and shall cause each of its respective Affiliates to, and shall request each of its respective independent auditors to, cooperate with the other party in providing information relating to the Business or any of the Transferred Entities for the purpose of preparing any financial statements or other financial reports that are required to be filed by such confidentiality agreements party or its Affiliates with the U.S. Securities and Exchange Commission. The requesting party shall reimburse the other party for its reasonable out-of-pocket expenses incurred in performing the covenants contained in this Section 4.2(f).
(g) Notwithstanding anything to the contrary in this Section 4.2, Seller shall have no obligation to provide Buyers or their respective representatives access to the properties or assets of the Transferred Entities to conduct any subsurface or Phase II environmental investigation or sampling or testing of any environmental medium and no such investigation or sampling or testing shall be undertaken by or on behalf of Buyer and its Controlled Affiliates (including Buyers before the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreementsClosing Date without Seller’s prior written consent.
Appears in 2 contracts
Samples: Purchase Agreement (Silgan Holdings Inc), Purchase Agreement (WestRock Co)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur of the Closing Date and or the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers the Company shall provide to Buyer and its authorized Representatives, representatives during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, books and records (excluding personnel files) and Contracts of the Transferred Company and its Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner so as to maintain confidentiality and not to unreasonably interfere with the normal business operations of Sellers the Company and their Controlled Affiliates (including the Transferred its Subsidiaries), the Business and the other businesses of Sellers and their Controlled Affiliates.
(b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s outside counsel, constitutes a waiver of any such privilege, privilege or (iii) if the provision of access to such document (or portion thereof) or information, as reasonably determined by such party’s outside counsel, would reasonably be expected to conflict with applicable Laws or Laws.
(ivc) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as confidential under the terms of that is a Parent Tax Group Return; providedcertain Confidentiality Agreement, that such withholding party dated as of August 7, 2013, between Broad Street Principal Investments, L.L.C. and Seller (the “Confidentiality Agreement”) and shall notify be subject to the other party Confidentiality Agreement, the terms of which are incorporated herein by reference.
(d) Subject to Section 4.2(c), Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media of the nature of any information so withheld Company and Sellers and Buyer shall work in good faith its Subsidiaries relating to make alternative arrangements periods ending on or prior to allow for such access or disclosures in a manner that does not result in the events set out in clauses Closing Date (i) through relating to information (ivincluding employment and medical records) above.
regarding the Company Employees, (hii) With respect as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request or (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the confidentiality agreements referenced Ancillary Agreements, in Section 1.3(b)(x)(B)each case subject to compliance with all applicable Laws. After the Closing Date, at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)Buyer shall, and shall cause the Company and its Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the Business in existence on the Closing Date and make the same available for inspection and copying by Seller (at Seller’s expense) during normal business hours of the Company or any of its Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the seventh (7th) anniversary of the Closing Date by Buyer, the Company or any of its Subsidiaries without first using reasonable efforts to give Seller ninety days’ prior written notice to, within that ninety days period, obtain possession thereof.
(e) Buyer and Seller shall (and shall cause their Controlled respective Affiliates to, enforce ) (i) provide the terms of such confidentiality agreements on behalf of Buyer other party and its Controlled Affiliates (including with such assistance as may be reasonably requested in connection with the Transferred Subsidiaries), including seeking specific performance preparation of any Tax Return or any audit or other equitable relief under examination by any taxing authority or any judicial or administrative proceeding relating to Taxes and (ii) retain (and provide the terms other party and its Affiliates with reasonable access to) all records or information which may be relevant to such Tax Return, audit, examination or proceeding, provided that the foregoing shall be done in a manner so as not to interfere unreasonably with the conduct of such confidentiality agreementsthe business of the parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (PSAV, Inc.)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur of the Closing Date and or the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers Seller shall provide to Buyer and its authorized Representatives, representatives during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, books and records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property)Business, provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues)) and any Emergency Measures, under the supervision of Sellers’ Seller’s or their Controlled its Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers Seller and their Controlled its Affiliates.
(b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, Seller may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or any Emergency Measures or (iv) relating to the sale process regarding the Business or the Company or any alternative transaction with respect to all or a portion of the Business, bids received from others in connection with such sale process or alternative transactions and information and analysis (including financial analysis) relating to such alternative transactions.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as confidential under the terms of that is certain Confidentiality Agreement, dated as of January 14, 2021, by and between Nucor and Seller (the “Confidentiality Agreement”) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Seller agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a Parent Tax Group Returnperiod of two (2) years following the Closing Date, (i) Seller shall, and shall cause its Affiliates (excluding the Company) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Affiliates (including the Company) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Seller and its Affiliates may disclose Business Confidential Information and Buyer and its Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party (including reports required to be filed by Seller under the Exchange Act) or (B) to their respective Affiliates and their and their respective Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Affiliates with respect to such information; provided, that such withholding party shall notify further, that, in the other party of the nature event of any information so withheld and Sellers and Buyer shall work in good faith such request or requirement, to the extent permitted by Law, the party requested or required to make alternative arrangements to allow for such access or disclosures in a manner that does not result disclosure shall (x) give Buyer (in the events set out case of Business Confidential Information) or Seller (in clauses the case of Excluded Confidential Information) prompt written notice of such request or requirement and reasonably consult with Buyer or Seller, as applicable, regarding the timing and content of such disclosure, (iy) through (iv) above.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall use commercially reasonable efforts (at Buyer’s sole cost or Seller’s, as applicable, expense) to cooperate with Buyer’s or Seller’s, as applicable, reasonable efforts to obtain a protective order or other remedy and (z) with respect to any disclosure, use commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to the information being disclosed. It is understood that the foregoing shall not restrict Seller or its Affiliates from making such disclosure (1) as Seller or its Affiliates deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda), (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Credit Facilities or any other Indebtedness of Seller or its Affiliates pursuant to the terms thereof or (z) pursuant to its reporting obligations under the Credit Facilities or the terms of any other Indebtedness of Seller or its Affiliates or (2) to potential acquirers of all or a material part of, or investors in, Seller’s business (other than the Business), in each case, so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Seller and its Affiliates (excluding the Company) shall have the right to retain copies of all books, data, files, information and records in any media of the Company or the Business relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Business Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iv) constituting an Excluded Asset, in each case subject to compliance with all applicable privacy Laws (such retained books, data, files, information and records, collectively, the “Retained Information”). After the Closing Date, Seller and its Affiliates shall, until the seventh (7th) anniversary of the Closing Date, (A) make the Retained Information (other than any such Retained Information constituting an Excluded Asset) available for inspection and copying by Buyer or its Affiliates (at Buyer’s expense) and (B) cause the employees, counsel and financial advisors of Seller and its Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with their ongoing financial reporting, accounting or other purpose related to Buyer’s ownership of the Business after the Closing (including the provision of relevant parts of the books and records of the Company), during normal business hours, upon reasonable request and upon reasonable notice; provided that Seller and its Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such Retained Information so long as Seller notifies Buyer prior to the destruction of any such material Retained Information and gives Buyer a reasonable opportunity (at Buyer’s expense) to obtain possession thereof.
(e) After the Closing Date, Buyer shall, and shall cause their Controlled Affiliates the Company to, enforce until the terms seventh (7th) anniversary of such confidentiality agreements the Closing Date, (i) retain all material books, records and other documents pertaining to the Business that are in existence on behalf the Closing Date and make the same available for inspection and copying by Seller and its Affiliates (at Seller’s expense) and (ii) cause the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Seller and its Affiliates in connection with their ongoing financial reporting, accounting or other purpose related to Seller and its Affiliates ownership of the Business prior to the Closing (including the Transferred Subsidiariesprovision of relevant parts of the books and records of the Company), including seeking specific performance during normal business hours, upon reasonable request and upon reasonable notice; provided that Buyer and the Company may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Seller prior to the destruction of any such information and give Seller a reasonable opportunity to obtain possession thereof.
(f) Each of Buyer and Seller shall, upon advance written request the other party, shall cause it and its Affiliates to make available, at reasonable times, such books and records and such directors, employees, and agents for fact finding, consultation, and interviews and as witnesses to the extent that any such Person may reasonably be requested by such party in connection with any pending or threatened Litigation, claim or demand asserted by a third party against Buyer, Seller or their respective Affiliates relating to pre-Closing Matters of the Business (excluding any threatened Litigation, claim or demand asserted by Buyer, Seller or their respective Affiliates against another party hereto). The requesting party shall promptly reimburse the other equitable relief party and/or its Affiliates for any and all reasonable out-of-pocket costs in complying with its obligations under this Section 4.2(f).
(g) Upon advance written request by Buyer, Seller shall, and shall cause its Affiliates to make available, at reasonable times, the terms Retained Information and such directors, employees, and agents of Seller or its Affiliates for fact finding, consultation, and interviews and as witnesses to the extent that any such confidentiality agreementsPerson may reasonably be requested by Buyer in connection with any pending or threatened Litigation, claim or demand asserted by a third party (excluding Seller or their Affiliates) against Buyer or its Affiliates relating to pre-Closing matters of the Business (other than any Retained Assets and Retained Liabilities). Buyer shall promptly reimburse Seller and/or its Affiliates for any and all reasonable out-of-pocket costs in complying with its obligations under this Section 4.2(g).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Nucor Corp), Securities Purchase Agreement (Cornerstone Building Brands, Inc.)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier Closing, subject to occur applicable Laws, Seller shall (i) give Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of the Closing Date Seller and the termination Selling Affiliates, (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information of this Agreement the Seller and the Selling Affiliates as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller and Seller’s Affiliates to cooperate with Buyer, in accordance with its termseach case, upon reasonable notice, Sellers shall provide solely to Buyer the extent relating exclusively to the Business and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with Buyer’s preparation to integrate the transactions contemplated herebyBusiness into Buyer’s organization following the Closing; provided that this Section 4.3(a) shall not entitle Buyer or its accountants, reasonable legal counsel or other representatives to contact any third party doing business with Seller or any Seller Affiliate or access to all the properties, books, books or records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expensethird party, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled Affiliateseach case without Seller’s prior written consent.
(b) From and after the Closing, Buyer shall promptly afford Seller and Seller’s respective agents reasonable access to the Transferred Records to the extent reasonably necessary for Seller in connection with any audit, investigation, dispute or Litigation; provided that Seller agrees to reimburse Buyer promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request.
(c) Notwithstanding anything to the contrary in Section 4.2(a)4.3(a) and (b) (i) access rights pursuant to Section 4.3(a) and (b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, Sellers (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws and (iii) neither Seller nor any of its Affiliates or representatives shall have any obligation to provide Buyer or its representatives (A) access to any Tax Return filed by Seller or any of its Affiliates, or any related materials, in each case not relating exclusively to the Business, (B) access to any individual personnel or payroll records, in each case not relating exclusively to the Business or (ivC) that is a Parent Tax Group Return; provided, that such withholding party shall notify access to the other party properties or assets of the nature Seller or its Affiliates to conduct any subsurface or Phase II environmental investigation or sampling or testing of any building materials, indoor air or environmental medium.
(d) All information so withheld and Sellers provided to Buyer pursuant to this Section 4.3 prior to the Closing shall be held by Buyer as Confidential Information (as defined in the Confidentiality Agreement, dated as of May 24, 2017, between Seller and Buyer (the “Confidentiality Agreement”)) and shall work be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall continue in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in full force and effect until the events set out in clauses Closing, at which time it shall automatically terminate. From and after the Closing: (i) through (iv) above.
(h) With respect to Seller, on the confidentiality agreements referenced in Section 1.3(b)(x)(B)one hand, at and Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)on the other hand, shall, and shall cause their Controlled respective Affiliates and representatives to, enforce maintain in confidence this Agreement and the terms Ancillary Agreements and any written, oral or other information related to the negotiation hereof and thereof, (ii) Seller shall, and shall cause its respective Affiliates and representatives to, maintain in confidence any written, oral or other information relating to the Business obtained by virtue of Seller’s ownership of the Business prior to the Closing and (iii) Buyer shall, and shall cause its Affiliates and representatives to, maintain in confidence any written, oral or other information of or relating to Seller and its Affiliates (other than information relating to the Business) obtained by virtue of Buyer’s ownership of the Business from and after the Closing, except, in each case, to the extent that the applicable party is required to disclose such information by judicial or administrative process or pursuant to applicable Law or the rules of any securities exchange to which that party is subject or such information can be shown to have been in the public domain through no fault of the applicable party. Notwithstanding the foregoing, after the Closing, Buyer shall, and shall cause its Affiliates and representatives to, use commercially reasonable efforts to promptly (and in any event within thirty (30) calendar days after the Closing) remove, erase, delete or otherwise destroy all information of or relating to Seller and its Affiliates (other than information relating to the Business) (whether in print, electronic or other forms) in the possession of any Employee of which Buyer acquires possession or control as a result of the transactions contemplated by this Agreement, except that Buyer shall not be required to remove, erase, delete or otherwise destroy information stored in any automatic archiving or backup system.
(e) Subject to Section 4.3(d) Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of the Business 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 may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request or (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements, in each case subject to compliance with all applicable privacy Laws. Buyer agrees that, with respect to all original books, data, files, information and records of the Business existing as of the Closing Date, it will (x) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (y) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records and (z) for at least ten years after the Closing Date, preserve and retain either (I) all such original books, data, files, information and records or (II) copies, which may be electronic copies, thereof, and thereafter dispose of its last remaining examples, which may be originals or copies, of such confidentiality agreements on behalf of Buyer books, data, files, information and its Controlled Affiliates records only after it shall have given Seller ninety (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms 90) calendar days’ prior written notice of such confidentiality agreementsdisposition and the opportunity (at Seller’s expense) to remove and retain such information.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur Closing, the Company shall, and shall cause each of the Closing Date its Subsidiaries to, (i) give Buyer, its counsel, financial advisors, auditors and the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers shall provide to Buyer and its other authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, representatives reasonable access to all the offices, properties, bookspersonnel, other facilities, books and records (excluding personnel files) and Contracts of the Transferred Company and its Subsidiaries, (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Company and its Subsidiaries as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of the Company and the Business (which materials will include Company’s Affiliates to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at cooperate with Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled Affiliates.
(b) Notwithstanding anything From the date hereof until the Closing, Buyer shall, and shall cause each of its Subsidiaries to, (i) give the Company, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, personnel, other facilities, books and records of Buyer and its Subsidiaries, (ii) furnish to the Company, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to Buyer and its Subsidiaries as such persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Buyer to cooperate with the Company.
(c) Anything to the contrary in Section 4.2(a)) and Section 4.2(b) notwithstanding, Sellers (i) access rights pursuant to Section 4.2(a) and Section 4.2(b) shall be exercised during normal business hours, upon reasonable advance notice and in such manner as not to interfere unreasonably with the conduct of the Company’s or Buyer’s business, as applicable, (ii) the Company or Buyer, as applicable, may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or fiduciary duty (ivit being agreed that, in the event that the exceptions set forth in clauses (A), (B) that is a Parent Tax Group Return; providedor (C) apply, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers Company and Buyer shall work cooperate in good faith to make design and implement alternative disclosure arrangements to allow for enable the requesting party to evaluate any such information without jeopardizing such restrictions) and (iii) neither party nor any of its Affiliates or representatives shall have any obligation to provide the other party or its representatives access to the properties or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) aboveassets of such party or its Subsidiaries to conduct any subsurface or Phase II environmental investigation, or sampling or testing of any environmental medium.
(hd) With respect All information provided to Buyer pursuant to this Section 4.2 prior to the confidentiality agreements referenced Closing shall be held by Buyer as Evaluation Material (as defined in Section 1.3(b)(x)(Bthe Confidentiality Agreement, dated as of January 13, 2016, between the Company and Buyer (the “Confidentiality Agreement”), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), ) and shall cause their Controlled Affiliates tobe subject to the Confidentiality Agreement, enforce the terms of such confidentiality agreements on behalf which are incorporated herein by reference. The Confidentiality Agreement shall continue in full force and effect until the Closing, at which time it shall automatically terminate and shall have no further force or effect.
(e) All information provided to the Stockholders pursuant to this Section 4.2 prior to the Closing shall be held by the Stockholders as Evaluation Material (as defined in the Confidentiality Agreement, dated as of March 2, 2016, between the Company and Buyer (the “Buyer Confidentiality Agreement”)) and its Controlled Affiliates (including shall be subject to the Transferred Subsidiaries)Buyer Confidentiality Agreement, including seeking specific performance or other equitable relief under the terms of such confidentiality agreementswhich are incorporated herein by reference. The Buyer Confidentiality Agreement shall continue in full force and effect until the second anniversary of the date hereof, at which time it shall automatically terminate and shall have no further force or effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Beasley Broadcast Group Inc)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b)Applicable Law, from during the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its termsInterim Period, upon reasonable advance notice, Sellers the Company shall, and shall cause the other Moneda Entities to, provide to Buyer PIL and its authorized Representatives, Agents (at PIL’s expense) during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, books and records (excluding personnel files) and Contracts of the Transferred Subsidiaries Moneda Entities and their employees. In exercising its rights hereunder, PIL shall conduct itself in a manner so as to not interfere with the Business (which materials will include normal business operations of the Moneda Entities prior to the extent in the possession of Sellers, copies of Closing. PIL acknowledges and agrees that any existing title insurance policies contact by PIL and surveys its Agents with Agents of the Business Real Property), provided that any such access Acquired Companies hereunder shall be conducted at Buyer’s expensearranged and supervised by Agents of the Moneda Shareholders previously agreed in writing, unless the Representatives otherwise expressly consent in accordance writing with applicable respect to any specific contact. Notwithstanding anything to the contrary set forth in this Agreement, neither the Moneda Shareholders nor any of their Affiliates (including the Moneda Entities) shall be required to disclose to PIL or any Agent thereof any information, (A) if in doing so, (1) could reasonably violate any Law (including any applicable Law relating privacy Law) or Contract to antitrust, competition, employment which a Moneda Shareholder or privacy issues), under the supervision any of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled its Affiliates (including any Acquired Company) is a party or is subject, (2) the Transferred Subsidiaries)Moneda Shareholders or such Affiliate of the Moneda Shareholders, as applicable, believe in good faith that such disclosure could impair the ability to successfully assert a claim of privilege (including the attorney-client and work product privileges) or (3) would result in the disclosure of any competitively sensitive information of the Moneda Shareholders or of any of their Affiliates, or (B) the disclosure of which requires the consent of any employee or other individual associated with the Moneda Entities, the Business and Moneda Shareholders or any of their Affiliates, until such time as such consent has been obtained. Nothing herein shall require the other businesses Moneda Shareholders or any Moneda Entities to violate any copyright of Sellers and their Controlled Affiliatesany third party.
(b) Notwithstanding anything In addition, during the Interim Period, subject to the contrary in Section 4.2(a5.4(a), Sellers may withhold any document the Company and, with respect to clause (or portions thereofiii) or information below, the Moneda Shareholders, if applicable, shall provide PIL with (i) that is subject each copy of the Company’s audited consolidated and quarterly interim financial statements, including any related notes (to the terms extent, and in the same form, issued in the ordinary course of a non-disclosure agreement with a third partybusiness), no later than five (5) Business Days following the date on which they are approved by the board of directors of the Company, (ii) that constitutes privileged attorney-client communications or attorney work product with financial and operating information provided to the transfer Company’s board of which, or the provision directors promptly following any meeting of access to which, as reasonably determined by its board of directors at which such party’s counsel, constitutes a waiver of any such privilege or information is provided and (iii) if the provision of access to such document (or portion thereof) or information, information as determined by such party’s counsel, would PIL may reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer request in respect of the nature Moneda Entities in order to prepare and file an information statement in respect of any information so withheld and Sellers and Buyer shall work in good faith the Transactions to make alternative arrangements be provided to allow for PIL’s shareholders, promptly as practicable following such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) aboverequest.
(c) All information provided to Buyer pursuant PIL or to this Section 4.2 prior to which PIL obtains access in connection with the Closing Transaction Agreements and the Transactions shall be held by Buyer PIL as “Evaluation Material” confidential and as Confidential Information (as defined in the Confidentiality Agreement) under the terms of that certain the Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), Agreement and shall be subject to the Confidentiality AgreementAgreement in all respects, the terms of which are incorporated herein by reference. Buyer Effective upon, and Sellers agree thatonly upon, if the Closing occursoccurrence of the Closing, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to information and other Confidential Information (ias defined in the Confidentiality Agreement) any trade secret, which will be kept confidential for as long as, and relating solely to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such informationAcquired Companies.
(d) Buyer acknowledges PIL shall promptly advise the Representatives, and agrees the Representatives shall promptly advise PIL, in writing, of any fact, change, condition, circumstance or occurrence or nonoccurrence of any event of which such party is aware (i) that Sellers and their Affiliates shall has had or is reasonably likely to have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries a Material Adverse Effect on PIL or the Company, respectively, or (ii) which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained herein or that reasonably could be expected to give rise, individually or in the aggregate, to the failure of a condition in Article 6. The Company may, from time to time prior to the date that is three (3) Business relating to periods ending on or Days prior to the Closing Date Date, by notice given to PIL in accordance with this Agreement, supplement or amend the Company Disclosure Schedule; provided that no such disclosure shall (i) as may be required deemed to have cured or to cure any past breach or past partial breach of any representation or warranty given by applicable Lawthe Company contained in this Agreement, including for purposes of indemnification in accordance with Article 8 and Article 9, or (ii) as may be necessary considered for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any purposes of determining whether the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information conditions set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c6.2(a) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof6.2(b) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) abovehave been satisfied.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from During the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its termsInterim Period, upon reasonable advance notice, Sellers the Company shall, and shall cause its Subsidiaries to, provide to Buyer and its authorized Representatives, representatives during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, books and records (excluding personnel files) and Contracts of the Transferred Company and its Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys employees of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, Company and its Subsidiaries (in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner so as to maintain confidentiality and not to unreasonably interfere with the normal business operations of Sellers the Company and their Controlled Affiliates (including the Transferred its Subsidiaries). Except as otherwise expressly permitted pursuant to this Agreement, during the Business and Interim Period, Buyer shall not contact any of the other businesses Company’s or its Subsidiaries’ employees, vendors, Company Clients or Contract counterparties, in each case, without receiving prior written authorization from the Company and, if such authorization is given, subject to the scope of Sellers and their Controlled Affiliatessuch authorization; provided that the foregoing shall not apply with respect to contacts in the ordinary course of business unrelated to this Agreement or the Transactions.
(b) Notwithstanding anything to the contrary in Section 4.2(a5.4(a), Sellers the Acquired Company granting access may withhold any document (or portions any portion thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such partyAcquired Company’s counsel, constitutes may constitute a waiver of any such privilege, (iii) if the provision of access to such document (or applicable portion thereof) or information, as determined by such partyAcquired Company’s counsel, would could reasonably be expected to conflict with applicable Laws or Applicable Laws, (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party pertaining to Taxes of the nature Shareholders or their Affiliates (other than documents and information relating solely to the Acquired Companies) or (v) relating to the sale process regarding the Acquired Companies or any potential alternative transaction with respect to all or a portion of any the Business, bids received from other Persons in connection with such sale process or potential alternative transactions and information so withheld and Sellers and Buyer analysis (including financial analysis) relating to such bids, sale process or potential alternative transactions; provided that the Company shall work in good faith to make alternative arrangements use commercially reasonable efforts to allow for such access or disclosures in a manner that does not result in the events set out in the preceding clauses (i) through and (iv) aboveii).
(hc) With In addition, during the Interim Period, the Company shall provide Buyer with (i) a copy of the Company’s audited consolidated balance sheet, statements of income, changes in shareholders’ equity and cash flows for the fiscal year ended December 31, 2018 following the receipt thereof from the Company’s auditors and (ii) if the Closing has not occurred prior to March 31, 2019, a copy of the Company’s quarterly unaudited consolidated balance sheet as of March 31, 2019, and income statements, changes in shareholders’ equity and cash flows for the period ending March 31, 2019, including the related notes, prepared in accordance with GAAP, on or before May 31, 2019. Buyer shall, upon demand, reimburse the Company and its Affiliates for their out-of-pocket costs incurred in connection with preparing such quarterly unaudited financial statements.
(d) All information provided to Buyer pursuant to this Section 5.4 shall be held by Buyer as confidential and as Confidential Information (as defined in the Confidentiality Agreement) under the terms of the Confidentiality Agreement and shall be subject to the Confidentiality Agreement in all respects, the terms of which are incorporated herein by reference. Effective upon, and only upon, the occurrence of the Closing, the Confidentiality Agreement shall terminate with respect to information and other Confidential Information (as defined in the Confidentiality Agreement) relating solely to the Acquired Companies.
(e) Buyer acknowledges and agrees that Shareholders and their Affiliates that are parties to or would be bound by the Shareholder Agreement or who enter into confidentiality agreements referenced with the Company or Buyer protecting the following information shall have the right to retain copies of all books, data, files, information, materials and records in Section 1.3(b)(x)(B)any form or media of the Acquired Companies relating to periods ending on or prior to the Closing Date (i) as may be required by any Governmental Authority, at Buyer’s written requestincluding pursuant to any Applicable Law or regulatory request or for purposes of preparing or filing any Tax Return or participating in an audit or other proceeding with respect to Taxes or (ii) as may be necessary for the Shareholders or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements, Sellers shall in each case, subject to compliance with all applicable privacy Laws.
(at Buyer’s sole cost and expense)f) After the Closing, Buyer shall, and shall cause their Controlled Affiliates each Acquired Company to, enforce until at least the terms seventh (7th) anniversary of the Closing Date, (i) retain all books, records and other documents pertaining to the Business in existence on the Closing Date and make the same available for inspection and copying by the Shareholders and their Affiliates and their respective representatives (in each case, at such confidentiality agreements on behalf Shareholder’s expense) and (ii) cause the employees, counsel and financial advisors of Buyer and its Controlled Affiliates (including, following the Closing, each Acquired Company) to reasonably cooperate with the Shareholders and their Affiliates and their respective representatives in connection with the Shareholders’ (or any of its Affiliate’s) ongoing financial reporting, accounting or other purpose related to their ownership or operation of the Business (including the Transferred Subsidiariesprovision of relevant parts of the books and records of each Acquired Company), including seeking specific performance during normal business hours, upon reasonable request and upon reasonable advance notice; provided that neither Buyer nor any Acquired Company shall be required to provide access to information (i) that may constitute privileged attorney-client communications or other equitable relief attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by Buyer’s counsel, may constitute a waiver of any such privilege, or (ii) if the provision of access to such document (or applicable portion thereof) or information, as determined by such Buyer’s counsel, could reasonably be expected to conflict with Applicable Laws; provided, further, that Buyer shall use commercially reasonable efforts to allow for such access and disclosure in a manner that does not result in the events set out in the preceding clauses (i) and (ii). After the seventh (7th) anniversary of the Closing Date, Buyer shall, and shall cause each Acquired Company to, use commercially reasonable efforts to notify Parent prior to the destruction of any such books, records or documents by Buyer or such Acquired Company and give Parent a reasonable opportunity to obtain possession thereof.
(g) Buyer shall promptly advise the Company, and the Company shall promptly advise Buyer, of any change or event (i) that has had or is reasonably likely to have a Buyer Material Adverse Effect or Company Material Adverse Effect, respectively, or (ii) which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained herein or that reasonably could be expected to give rise, individually or in the aggregate, to the failure of a condition in Article 6; provided, that, without limiting the consequences of any underlying change or event, any failure to give notice in accordance with the foregoing with respect to any breach shall not in and of itself be deemed to result in the failure of any condition set forth in Section 6.2 or Section 6.3 to be satisfied, or give rise to any indemnification rights under the terms of such confidentiality agreementsArticle 8 or 9 in respect thereof.
Appears in 1 contract
Samples: Merger Agreement (Invesco Ltd.)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from Between the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its termsand the Closing Date, upon reasonable noticeSeller will, Sellers and Seller shall provide cause the Acquired Companies to, during ordinary business hours, (i) give to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, representatives reasonable access to all properties, books, records (excluding personnel files) including, without limitation, all work papers and Contracts other documents of the Transferred Subsidiaries Acquired Companies and their accountants), plants, offices and other facilities and properties of the Business Acquired Companies, (which materials will include ii) permit Buyer to make such inspections thereof as Buyer may reasonably request and (iii) cause the Acquired Companies’ officers, employees and advisors to furnish Buyer with such financial and operating data and other information with respect to the extent in the possession of SellersAcquired Companies and their businesses, copies of any existing title insurance policies properties and surveys of the Business Real Property), provided that any assets as Buyer may from time to time reasonably request. Any such access inspection or investigation shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations operation of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), Acquired Companies or the Business and the other businesses of Sellers and their Controlled AffiliatesBusiness.
(b) Notwithstanding anything From and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall promptly afford the other party and its respective agents reasonable access to their respective books and records and information (in each case relating to periods ending on or prior to the Closing Date), employees responsible for the maintenance of such books and records and information, and auditors, in each case to the extent reasonably necessary for the party requesting such access in connection with the operation of the Business, administration of claims and policies, the preparation of any financial statements or any audit, investigation, dispute or Action; provided that the party requesting such access agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request.
(c) Anything to the contrary in Section 4.2(a)5.1(a) or (b) notwithstanding, Sellers (i) access rights pursuant to Section 5.1(a) or (b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer the Person shall use reasonable efforts to seek a waiver of the nature of any information so withheld and Sellers and Buyer shall work in good faith such confidentiality obligations, enter into a customary joint defense agreement or take other reasonable actions to make alternative arrangements to allow for mitigate such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained)restrictions, (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws and (iii) neither Seller nor Buyer, nor any of such party’s auditors or accountants, shall be obligated to make any work papers available to any Person unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants.
(ivd) that is a Parent Tax Group Return; providedAll information provided to Buyer pursuant to this Section 5.1 prior to the Closing shall be held by Buyer as Confidential Information (as defined in the Letter Agreement, that such withholding party dated as of June 23, 2015, between Seller and AmTrust Financial Services, Inc. (the “Confidentiality Agreement”) and shall notify be subject to the other party Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall continue in full force and effect until the nature of any information so withheld and Sellers and Closing, at which time it shall automatically terminate. Buyer shall work in good faith be bound by the Confidentiality Agreement from inception and will be deemed to make alternative arrangements to allow for such access or disclosures in be a manner that does not result in party thereto. From and after the events set out in clauses Closing: (i) through (iv) above.
(h) With respect to Seller, on the confidentiality agreements referenced in Section 1.3(b)(x)(B)one hand, at and Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)on the other hand, shall, and shall cause their Controlled respective Affiliates and Representatives to, enforce maintain in confidence and not use or disclose this Agreement and any written, oral or other information related to the terms negotiation hereof, (ii) Sellers shall, and shall cause their respective Affiliates and Representatives to, maintain in confidence and not use or disclose any Confidential Information, except, in each case, (x) Buyer, Seller or their respective Affiliates may disclose such information to the extent that the applicable party is required to disclose such information by judicial or administrative process or pursuant to applicable Law; provided that such party shall promptly notify the non-disclosing party in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and the disclosing party shall cooperate with the non-disclosing party and the Acquired Companies to preserve the confidentiality of such information consistent with applicable Law, and (y) Seller or Buyer or their respective Affiliates, as the case may be, may disclose to any Person having any direct or indirect beneficial interest in such party, any lender of such party or any rating agency of such party or its Affiliates, information that is of a type customarily provided to such Person in connection with actions proposed to be taken by such party pursuant to this Agreement or in connection with the transactions contemplated hereby.
(e) Subject to Section 5.1(c) and Section 5.1(d), (i) Seller and its Affiliates shall have the right, upon prior written notice to the Buyer and subject to the execution of a customary confidentiality agreements agreement in a form reasonably acceptable to the Buyer, to have reasonable access to, and to inspect and copy, all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of any of the Acquired Companies relating to periods ending on behalf or prior to the Closing Date and to the extent such access or copies are reasonably required in connection with any Tax Return required to be filed by Seller under Law or the defense of any Third Party Claim, and (ii) Buyer and its Controlled Affiliates shall have the right, upon prior written notice to the Seller and subject to the execution of a customary confidentiality agreement in a form reasonably acceptable to Seller, to have reasonable access to, and to inspect and copy, all books, data, files, information and records in any media (including including, for the Transferred Subsidiaries)avoidance of doubt, including seeking specific performance Tax Returns and other information and documents relating to Tax matters) of Seller or other equitable relief any of the its Affiliates relating to periods ending after the Closing Date and to the extent such access or copies are reasonably required in connection with any Tax Return required to be filed by Buyer under Law or the terms defense of any Third Party Claim. Any information or materials retained by Seller or Buyer or pursuant to this Section 5.1(e) shall be subject to the confidentiality provisions set forth in this Section 5.1. Seller or Buyer shall return such confidentiality agreementsbooks, data, files, information and records to Seller or Buyer as soon as such books, data, files, information and records are no longer needed.
(i) Buyer agrees that, with respect to all material books, data, files, information and records of the Acquired Companies and (ii) Seller agrees, that with respect to all existing books, data, files, information and records of Seller and its Affiliates relating to Business or the Acquired Companies, in each case as of the Closing Date, it will, for a period of six (6) years from the Closing Date, (x) comply in all material respects with all applicable Laws relating to the preservation and retention of records and (y) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records.
Appears in 1 contract
Samples: Securities Purchase Agreement (National General Holdings Corp.)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its terms, upon reasonable noticeDate, Sellers shall provide to (i) give Buyer, its counsel, financial advisors, consultants, lenders, auditors and other authorized representatives and agents (including, for the avoidance of doubt, the Financing Sources) (the “Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, ”) reasonable access to all the offices, properties, books, books and records (excluding personnel filesincluding, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and Contracts of the Companies, the Transferred Subsidiaries and the Business Business, (which materials will include ii) furnish to Buyer and the Buyer Representatives such financial and operating data and other information relating to the extent Companies, the Transferred Subsidiaries or the Business as such Persons may reasonably request (including furnishing, (1) as soon as available but in no event later than forty-five (45) days following the possession end of Sellerseach calendar month, copies of any existing title insurance policies and surveys the unadjusted management accounts of the Business Real Propertyfor each such calendar month, and (2) as soon as available but in no event later than sixty (60) days following the end of each calendar quarter, the unadjusted management accounts of the Business for such calendar quarter, in each case prepared in the ordinary course of business consistent with past practice), provided that any such access shall be conducted at Buyer’s expenseand (iii) instruct the employees, in accordance with applicable Law (including any applicable Law relating to antitrustaccountants, competitioncounsel, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel consultants and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations financial advisors of Sellers and their Controlled Affiliates (including to cooperate with Buyer in connection with Buyer’s preparation to integrate the Companies and the Transferred Subsidiaries), Subsidiaries into Buyer’s organization following the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) Notwithstanding anything From and after the Closing, Sellers and Buyer shall, upon reasonable notice by any Seller or its Affiliates to Buyer or by Buyer to any Seller, as the case may be, (i) provide one another and their respective representatives reasonable access to their properties, information, data, books, records, employees and auditors to the extent relating to the Business or the Companies or the Transferred Subsidiaries with respect to any pre-Closing period or matter occurring prior to the Closing, (ii) permit one another and their respective representatives to make such copies and inspections of any such information, data, books and records as any of them may reasonably request, (iii) make available to one another and their respective representatives, their officers, employees, accountants and representatives to provide reasonable assistance and co-operation in the review of information described in this Section 4.2(b) and (iv) cooperate with one another and their respective representatives, including by furnishing such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals and make available their respective employees as witnesses, to the extent reasonably necessary or appropriate in connection with any Litigation arising out of the Business or operations of the Companies or the Transferred Subsidiaries in which the requesting party or any of its Affiliates are or may from time to time be involved, in each case other than with respect to any actual or potential Litigation involving disputes between Buyer, on the one hand, and any Seller, on the other hand.
(c) Prior to, and for a period of six (6) months following, Closing, upon the written request of Buyer and at Buyer’s sole cost and expense, Sellers shall, and shall cause each member of the Seller Group and each of their respective employees to, use reasonable best efforts to promptly provide Buyer and the Buyer Representatives with such financial and other information relating to the Business as is reasonably available to the Sellers that may be required in connection with, or is otherwise reasonably advisable or useful in connection with, the preparation of any financial statements of the Business (including any audited financial statements) (it being understood, for the avoidance of doubt, that such information may, to the extent necessary, include information pertaining to the Seller Group as related to the Business) as may be necessary or advisable to prepare or audit financial statements in accordance with GAAP, IFRS or such other applicable accounting standards designated by Buyer, to the extent and in such form and for such periods as would be required for a filing pursuant to the Exchange Act (including Regulation S-X thereunder and other accounting rules and regulations of the SEC), including in order to enable the Buyer to satisfy any reporting obligation it may have to file such financial statements with the Securities and Exchange Commission following the Closing Date under Item 9.01 of Form 8-K under the Exchange Act (including any auditors’ consents to permit the incorporation by reference of any such audited financial statements of the Business in any pending registration statement of the Buyer), but for the avoidance of doubt regardless of whether any such filing is in fact required, and to otherwise reasonably cooperate with Buyer and Buyer Representatives in connection with the preparation of any such audited financial statements of the Business; provided however, that the Sellers shall not be required to provide any financial or other information pursuant to this Section 4.2(c) that is not then reasonably available to the Sellers.
(d) Anything to the contrary in Section 4.2(a) or Section 4.2(b) notwithstanding, (i) access rights pursuant to Section 4.2(a), Sellers Section 4.2(b) or Section 4.2(c) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third partyparty (provided that such party shall reasonably cooperate to obtain consent to disclose, so that Buyer and its representatives may obtain access to such information), (iiB) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege (provided that such party shall cooperate to enable Buyer to enter into appropriate confidentiality, joint defense or similar documents or arrangements so that Buyer and its representatives may obtain access to such information), (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counselparty in good faith, would reasonably be expected to conflict with applicable Laws; Laws or agreements with Governmental Authorities or (D) that such party determines in good faith constitutes competitively sensitive cost or pricing information including bidding history (provided, that Sellers that, if requested by Buyer, such documents or information under this section (ii)(D) will notify Buyer be provided to members of the nature clean team pursuant to a “clean team agreement” to be negotiated in good faith and entered into by the parties following the date hereof (the “Clean Team Agreement”), (iii) neither any Seller nor any of its Affiliates or representatives shall have any obligation to provide Buyer or its representatives (A) access to any portion of any Consolidated or Combined Return not related to the Companies or the Transferred Subsidiaries or (B) access to the properties or assets of any of the Companies or their respective Subsidiaries to conduct any subsurface or Phase II environmental investigation, or other intrusive sampling or testing of any environmental medium without Sellers’ consent (it being agreed that, in the event that the restrictions of clauses (ii)(A) – (C) or (iii) apply, Sellers shall provide Buyer with a reasonably detailed description of the information so withheld not provided and Sellers and Buyer shall work cooperate in good faith to make design and implement, to the extent practicable, alternative disclosure arrangements to allow enable Buyer to evaluate any such information without violating Law or the applicable privilege or breaching Sellers’ obligations to any Third Party), and (iv) the party requesting access pursuant to Section 4.2(a) or Section 4.2(b) shall reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred by the other party in connection with any such access or disclosures in a manner that does not result in request made after the events set out in clauses (i) through (iii) aboveClosing.
(ce) All information provided to Buyer or its respective Affiliates pursuant to this Section 4.2 4.1 prior to the Closing shall be held by Buyer as “Evaluation Material” under Confidential Information (as defined in the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28June 13, 20232015 between Custom Sensors & Technologies, by Inc. and between Buyer and Parent Sensata Technologies, Inc. and, to the extent applicable, the Clean Team Agreement (such Confidentiality Agreement and, to the extent applicable, the Clean Team Agreement being collectively referred to as (the “Confidentiality Agreement”), ) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer The Confidentiality Agreement is hereby amended to provide that it shall continue in full force and Sellers agree that, if effect until the Closing occursDate, the Confidentiality Agreement at which time it shall automatically terminate effective upon terminate.
(f) From and after the Closing. For Closing Date: (i) for a period of seven two (72) years following after the Closing Date (except with respect to (i) any trade secretDate, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates and representatives to, maintain in confidence any written, oral or other information relating to keep confidential, the Companies and not disclose or use, except as otherwise expressly permitted herein or as required for the performance Transferred Subsidiaries obtained by virtue of Sellers’ ownership of the Ancillary AgreementsBusiness or the Companies and the Transferred Subsidiaries prior to the Closing, all Business Confidential Information and (ii) for a period of two (2) years after the Closing Date, Buyer shall, and shall cause its Controlled Affiliates and representatives to, maintain in confidence any written, oral or other information of or relating to any Seller or its Affiliates (including other than to the extent related to the Business, the Companies and the Transferred Subsidiaries) obtained by virtue of Buyer’s or Sellers’ ownership, management or provision of services to keep confidentialthe Business, the Companies and not disclose or usethe Transferred Subsidiaries from and after the Closing, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Informationexcept, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirementcase, to the extent permitted by Law, that the applicable party requested or is required to make disclose such disclosure (1) shall give Buyer information by judicial or administrative process or pursuant to applicable Law (in which case such party shall notify the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an and cooperate reasonably in obtaining any appropriate protective order or other remedy limitation to maintain the confidentiality of such information) or waive compliance, such information can be shown to have been in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion public domain through no fault of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other applicable party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(dg) Buyer acknowledges Subject to Sections 4.2(f) and agrees that (g), Sellers and their Affiliates shall have the right to retain copies of books all books, data, files, information and records in any media (including personnel filesincluding, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of the Business, Companies and the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date or the pre-Closing portion of any Straddle Period (i) as may be required by applicable Lawrelating to information (including employment and medical records) regarding the Transferred Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, or (iii) as may be necessary for Sellers any Seller or their its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After Agreements, in each case subject to compliance with all applicable privacy Laws. Buyer agrees that, with respect to all original books, data, files, information and records of the Closing Date, Buyer shall, Companies and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary existing as of the Closing Date, it will (ix) retain comply in all material respects with all applicable Laws relating to the preservation and retention of records, (y) apply preservation and retention policies that are no less stringent in the aggregate than those generally applied by Buyer to its own books and records pertaining to the Business that are in existence on and (z) for at least seven years after the Closing Date Date, preserve and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reportingretain all such original books, accountingdata, regulatory filingsfiles, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereofrecords.
(fh) After Promptly following receipt of the Closing Datewritten request therefor, after the Closing, Sellers shall, and shall cause their respective Controlled Affiliates the other members of the Seller Group to, until the seventh (7th) anniversary of the Closing Date (and, with respect deliver to Buyer any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to of the Business that are or the Companies or Transferred Subsidiaries in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at BuyerSellers’ or such other Seller Group member’s expense) or their respective representatives’ possession or under their control to the extent necessary not already in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access Companies or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) above.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Sensata Technologies Holding N.V.)
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur of the Closing Date and or the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers Seller shall provide to Buyer and its authorized Representatives, representatives during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, books and records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business Entities (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner so as to maintain confidentiality and not to unreasonably interfere with the normal business operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), Entities) and books and records of Seller and its Affiliates to the Business and extent related to the other businesses of Sellers and their Controlled AffiliatesBusiness.
(b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, party (ii) provided that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access such party shall use its commercially reasonable efforts to which, as reasonably determined by disclose such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner way that does would not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as violate such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Informationagreement), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege (provided that such party shall use its commercially reasonable efforts to disclose such information in a way that would not waive such privilege), (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) relating to the sale process regarding the Transferred Entities or any alternative transaction including all or a portion of the Business, bids received from others in connection with any such sale process or alternative transactions and information and analysis (including financial analysis) relating to such bids or alternative transactions.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as confidential under the terms of that is a Parent Tax Group Return; certain Confidentiality Agreement, dated as of September 16, 2014, between NGL Spark Plug Co., Ltd. and Seller (the “Confidentiality Agreement”) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference.
(d) Buyer acknowledges and agrees that Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media of the Transferred Entities relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Business Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request or (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements, in each case subject to compliance with all applicable privacy Laws.
(e) After the Closing Date, Buyer and Seller shall and shall cause their Subsidiaries (including the Transferred Entities) to, until the seventh (7th) anniversary of the Closing Date, (i) retain all books, records and other documents pertaining to the Business in existence on the Closing Date and make the same available for inspection and copying by the other party (at the other party’s expense) for any business purpose, provided, that such withholding this shall not include in connection with any claim under Article VIII and (ii) cause its employees, counsel and financial advisors to reasonably cooperate with the other party in connection with ongoing financial reporting, accounting or other business purposes related to the Business (including the provision of relevant parts of the books and records of any of the Transferred Entities, but subject to the proviso in clause (i)), during normal business hours, upon reasonable request and upon reasonable notice. Each party shall, and shall cause its Subsidiaries (including the Transferred Entities) to, use commercially reasonable efforts to notify the other party prior to the destruction of any books, records or documents to the extent they relate to such other party’s business or obligations, and give the other party a reasonable opportunity to obtain possession thereof (at such other party’s sole expense) after the seventh (7th) anniversary of the nature Closing Date.
(f) Notwithstanding anything to the contrary in this Section 4.2, Seller shall have no obligation to provide Buyer or its representatives access to the properties or assets of the Transferred Entities to conduct any subsurface or Phase II environmental investigation, or sampling or testing of any information so withheld environmental medium and Sellers and no such investigation or sampling or testing shall be undertaken by or on behalf of Buyer.
(g) Buyer shall work in good faith (and shall cause its Affiliates to) make available to make alternative arrangements Seller at Seller’s sole cost and expense all financial records of the Transferred Entities held by the Transferred Entities at Closing for the fiscal year during which Closing occurs and any prior fiscal year (the “Relevant Fiscal Years”) to allow enable Seller and its Affiliates to meet its obligations under New Zealand Tax Law, provided that such financial records shall be held by Seller and its Affiliates as confidential except to the extent disclosure is necessary for such access or disclosures in a manner that does not result in the events set out in clauses reporting under New Zealand Tax Law. Such financial records shall include: (i) through financial statements (to the extent such financial statements are required by law to be prepared), (ii) supporting trial balances, (iii) detailed loan schedules showing movements in the balances of financial arrangements (including external loan and intercompany loan balances), and (iv) above.
(h) With respect copies of Tax Returns and confirmations of Tax payments relating to each Relevant Fiscal Year, in each case, for some or all of the confidentiality agreements referenced in Section 1.3(b)(x)(B), Transferred Entities. Buyer shall provide all such financial records promptly upon request by Seller and at Buyer’s written request, Sellers shall (at BuyerSeller’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(bapplicable Laws (including COVID-19 Measures), from the date hereof until the earlier Closing, Seller shall (i) give Buyer and its Representatives reasonable access to occur the offices, properties, books and records of the Closing Date and the termination of this Agreement in accordance with its termsany Target Company, upon reasonable notice, Sellers shall provide (ii) furnish to Buyer and its authorized Representatives, during normal business hours at Representatives such financial and operating data and other information to the reasonable prior extent relating to the Business or the Target Companies as such Persons may reasonably request and (iii) instruct the Representatives of Seller and Seller’s Affiliates to cooperate with Buyer and its Representatives in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts integration of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Target Companies into Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under organization following the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) Subject to applicable Laws (including COVID-19 Measures), from and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall promptly afford the other party and its respective Representatives reasonable access (including the right to make copies) to their respective books and records, information, employees and auditors in each case to the extent relating to the Business or the Target Companies and necessary or useful for the party requesting such access in connection with any audit, investigation, dispute or Litigation; provided that the party requesting such access agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request; provided, however, that neither party shall be obligated to provide the other party any such access if Seller or its Affiliates, on the one hand, or Buyer or its Affiliates, on the other hand, are adverse parties in any such audit, investigation, dispute or Litigation and (x) such books, records, information, employees and auditors are reasonably pertinent thereto or (y) such access would be in contravention of Law.
(c) Notwithstanding anything to the contrary in Section 4.2(a) or (b), Sellers (i) access rights pursuant to Section 4.2(a) or (b) shall be exercised in such manner as not to (A) interfere unreasonably with the conduct of the Business or any other business of the party granting such access or (B) jeopardize the health and safety of any person who would be involved with facilitating such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) in the case the party granting access is Buyer, that is subject to the terms of a non-disclosure agreement with a third party, (ii) that party or constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (iiB) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes is reasonably likely to constitute a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws Laws, and (iii) neither Seller nor any of its Affiliates or Representatives shall have any obligation to provide Buyer or its Representatives (A) access to any portion of any Tax Return filed by Seller or any of its Affiliates, or any related materials, in each case to the extent not relating to one of the Target Companies, (B) access to any individual personnel or payroll records, in each case to the extent not relating to one of the Company Employees or the Target Companies, or (C) access to the properties or assets of the Target Companies to conduct any subsurface or Phase II environmental investigation, or sampling or testing of any environmental medium.
(d) All information provided to Buyer pursuant to Section 4.2 prior to the Closing shall be held by Buyer as Confidential Information (as defined in the Confidentiality Agreement, dated as of June 23, 2020, between Seller and Buyer (the “Confidentiality Agreement”)) and shall be subject to the Confidentiality Agreement; provided that, notwithstanding anything to the contrary in the Confidentiality Agreement, Buyer, its Affiliates and its and their respective Representatives may disclose and use Confidential Information as required by this Agreement and the Ancillary Agreements or otherwise with Buyer’s prior written consent (which may not be unreasonably withheld, conditioned or delayed). The Confidentiality Agreement shall automatically terminate as of the Closing Date; provided that (i) the obligations of Buyer and its Representatives (as defined in the Confidentiality Agreement) with respect to the disclosure of any Confidential Information solely pertaining to the Retained Business and (ii) the obligations of Buyer and its Affiliates with respect to the solicitation of the employees set forth on Exhibit A thereto, in each case, shall survive such termination and continue in accordance with the terms of the Confidentiality Agreement for the terms set forth therein.
(e) Subject to Section 4.23(e), Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of each Target Company relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Company Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, (iii) as may be necessary to comply with ordinary course electronic back-up practices or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the nature Ancillary Agreements, in each case subject to compliance with all applicable privacy Laws. Buyer agrees that, with respect to all original books, data, files, information and records of any the Target Companies existing as of the Closing Date, it will (w) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (x) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records, (y) make the same available after the Closing for inspection and copying by Seller or its representatives (at Seller’s expense) during regular business hours and upon reasonable request and upon reasonable advance notice, and (z) for at least six years after the Closing Date, preserve and retain all such original books, data, files, information so withheld and Sellers records and Buyer shall work in good faith to make alternative arrangements to allow for thereafter dispose of such access or disclosures in a manner that does not result original books, data, files, information and records in the events set out in clauses (i) through (iv) aboveordinary course of business.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the Closing or the earlier to occur of the Closing Date and the termination of this Agreement in accordance with Section 6.1, Seller shall (i) give Buyer, its termscounsel, upon financial advisors, auditors and other authorized representatives reasonable notice, Sellers shall provide to Buyer and its authorized Representatives, access during normal business hours at to the reasonable prior offices, properties, books and records of the Acquired Companies, (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Acquired Companies as such Persons may reasonably request and (iii) instruct the employees of Buyer Seller and Seller’s Affiliates to cooperate with Buyer, in each case solely in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating reasonable preparation to antitrust, competition, employment or privacy issues), under integrate the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with Acquired Companies into Buyer’s organization following the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) Notwithstanding anything From and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall promptly afford the other party and its respective counsel, financial advisors, actuaries, auditors and other authorized representatives reasonable access during normal business hours to their respective books and records, information, employees, actuary and auditors to the extent necessary or useful for the party requesting such access in connection with any audit, investigation, dispute, Litigation, regulatory or statutory filings, earnings releases, statistical supplements or financial statements; provided that the party requesting such access agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request. Buyer shall cause the Acquired Companies to maintain the books and records, books of account, financial and other records (including accountant’s work papers) for examination and copying by Seller for a period of not less than six years (or, in the case of Tax Returns, until the date on which the relevant statute of limitations expires) following the Closing Date or any longer period as mandated by applicable Law, after which the Acquired Companies may destroy such records in their sole discretion. In addition to and without limiting the generality of the foregoing, Buyer shall use commercially reasonable efforts to facilitate the Acquired Companies’ employees’ participation in such meetings and interviews as may be requested by Seller or its counsel, financial advisors, actuaries, auditors, and other authorized representatives.
(c) Anything to the contrary in Section 4.2(a)) or (b) notwithstanding, Sellers (i) access rights pursuant to Section 4.2(a) or (b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (iiB) that constitutes may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, information would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld Laws and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) aboveneither Seller nor any of its Affiliates or representatives shall have any obligation to provide Buyer or its representatives (A) access to any Tax Return filed by Seller or any of its Affiliates, or any related materials, in each case not relating exclusively to the Acquired Companies or (B) access to any individual personnel or payroll records, in each case not relating exclusively to the Acquired Companies.
(cd) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under Confidential Material (as defined in the terms of that certain Confidentiality and Nondisclosure Mutual Non-Disclosure Agreement, dated as of July 28June 10, 20232014, by between SIC and between Buyer and Parent (the “Confidentiality Agreement”), ) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the The Confidentiality Agreement shall automatically terminate effective upon continue in full force and effect until the Closing, at which time it shall automatically terminate. For a period of seven (7) years following From and after the Closing Date (except with respect to Closing: (i) any trade secretSeller, which will be kept confidential for as long ason the one hand, and to Buyer, on the extent thatother hand, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled respective Affiliates and representatives to, maintain in confidence this Agreement and any written, oral or other information related to keep confidentialthe negotiation hereof, (ii) Seller shall, and not disclose shall cause its respective Affiliates and representatives to, maintain in confidence any written, oral or use, except as otherwise expressly permitted herein or as required for other information relating to the performance Acquired Companies obtained by virtue of Seller’s ownership of the Ancillary Agreements, all Business Confidential Information Acquired Companies prior to the Closing and (iiiii) Buyer shall, and shall cause its Controlled Affiliates and representatives to, maintain in confidence any written, oral or other information of or relating to Seller or any of its Subsidiaries (including the Transferred Subsidiaries) other than information relating solely to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance any of the Ancillary AgreementsAcquired Companies) obtained in the course of the evaluation and negotiation of the transactions contemplated hereby or by virtue of Buyer’s ownership of the Acquired Companies from and after the Closing, all Excluded Confidential Information; provided that Sellers and except, in each case, (x) Buyer, Seller or their Controlled respective Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) such information to the extent requested or that the applicable party is required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know disclose such information and who are bound by obligations judicial or administrative process or pursuant to applicable Law or such information can be shown to have been in the public domain through no fault of the applicable party or received by the applicable party from a third party that was not subject to an obligation of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; providedinformation and (y) Seller or Buyer or their respective Affiliates, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in as the case of Business Confidential Information) may be, may disclose to any Person having any direct or Sellers (indirect beneficial interest in the case of Excluded Confidential Information) prompt written notice such party, any lender of such request party or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms any rating agency of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) information that is of a type customarily provided to such Person in connection with any issuance, incurrence actions proposed to be taken by such party pursuant to this Agreement or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with the transactions contemplated hereby. Notwithstanding the foregoing, after the Closing, Buyer shall, and shall cause its Affiliates and representatives to, use commercially reasonable efforts to promptly (and in any repayment event within thirty days after the Closing) remove, erase, delete or repurchase offer otherwise destroy all information relating solely to Seller or any of its Subsidiaries (other than information relating to the holders Acquired Companies) (whether in print, electronic or other forms) in the possession of Indebtedness under the Securitization Facility or any other Indebtedness employee of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such informationAcquired Companies.
(de) Buyer acknowledges Subject to Section 4.2(d), Seller and agrees that Sellers and their its Affiliates shall have the right to retain copies of books all books, data, files, information and records in any media (including personnel filesincluding, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of any of the Transferred Subsidiaries or the Business Acquired Companies relating to periods ending on or prior to the Closing Date (i) as may be required by applicable LawDate. Buyer agrees that, (ii) as may be necessary for Sellers or their Affiliates with respect to perform their respective obligations pursuant to this Agreement or any all original books, data, files, information and records of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary Acquired Companies existing as of the Closing Date, it will (ix) retain comply in all material respects with all applicable Laws relating to the preservation and retention of records and (y) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records. Any information or materials retained by Seller pursuant to this Section 4.2(e) shall be subject to the confidentiality provisions set forth in this Section 4.2.
(f) Subject to Section 4.2(e), at the Closing, Seller shall cause all material books and records pertaining of the Acquired Companies in the possession of Seller to be delivered to Buyer (or a Person designated by Buyer) in the Business that are manner (and in existence on the Closing Date case of physical books and make records at the same available for inspection and copying location(s)) reasonably requested by Sellers and their Affiliates (at Sellers’ expense) Buyer, in all cases to the extent necessary not located at an office of the Acquired Companies, subject to the following exceptions:
(i) Buyer recognizes that certain books and records may contain incidental information relating to the Acquired Companies or may relate primarily to subsidiaries, divisions or businesses of Seller and its Affiliates other than the Acquired Companies, and that Seller shall not be required to transfer to Buyer, and Seller may retain, such books and records, provided that Seller shall provide to Buyer copies of the relevant portions of such books and records relating to the Acquired Companies;
(ii) Without limiting the foregoing, Seller shall not be required to transfer to Buyer, and Seller may retain, books and records (including financial records), documents, data and information (in whatever form maintained) of the Acquired Companies that relate to Seller or any of its Affiliates (other than the Acquired Companies), including any internal corporate proceedings of Seller or any of its Affiliates (other than the internal corporate proceedings of any Acquired Company), any minutes books, shareholder consents, consolidated financial reports, documents and other materials reflecting or relating to internal approval processes of Seller or any of its Affiliates (other than the Acquired Companies) and any electronic mail, files, records, data and information with respect to the employees of Seller or any of its Affiliates (other than any electronic mail, files, records, data and information with respect to any Continuing Employee that relates exclusively to the Acquired Companies or the Business), provided that Seller shall provide to Buyer copies of the relevant portions of such books and records relating to the Acquired Companies;
(iii) Seller shall not be required to transfer to Buyer, and Seller may retain, all books and records, internal drafts, opinions, valuations, correspondence or other materials prepared in connection with Sellersthe negotiation, valuation and consummation of the sale of the Shares and the Acquired Companies and/or the terms of engagement of any representatives of Seller or any of its Affiliates with respect thereto, including bids received from other parties and analyses relating to the Acquired Companies;
(iv) Seller may retain any Tax Returns, and Buyer shall be provided with copies of the Acquired Companies’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, separate Tax Returns and the pro forma portion of any consolidated or other similar purpose combined Tax Returns relating solely to the Acquired Companies; and
(v) Seller shall not be required to transfer to Buyer, and Seller may retain, any consolidated regulatory filings made by Seller or its Affiliates and any related correspondence with Governmental Authorities unless the information contained therein relates exclusively to Sellers and their Affiliates ownership any of the Business prior to the Closing Acquired Companies or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Seller shall provide to Buyer and copies of the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction relevant portions of any such information regulatory filings and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates correspondence relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereofAcquired Companies.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) above.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(bapplicable Laws (including COVID-19 Measures), from the date hereof until the earlier Closing, Seller shall (i) give Buyer and its Representatives reasonable access to occur the offices, properties, books and records of the Closing Date and the termination of this Agreement in accordance with its termsany Target Company, upon reasonable notice, Sellers shall provide (ii) furnish to Buyer and its authorized Representatives, during normal business hours at Representatives such financial and operating data and other information to the reasonable prior extent relating to the Business or the Target Companies as such Persons may reasonably request and (iii) instruct the Representatives of Seller and Seller’s Affiliates to cooperate with Buyer and its Representatives in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts integration of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Target Companies into Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under organization following the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) Subject to applicable Laws (including COVID-19 Measures), from and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall promptly afford the other party and its respective Representatives reasonable access (including the right to make copies) to their respective books and records, information, employees and auditors in each case to the extent relating to the Business or the Target Companies and necessary or useful for the party requesting such access in connection with any audit, investigation, dispute or Litigation; provided that the party requesting such access agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request; provided, however, that neither party shall be obligated to provide the other party any such access if Seller or its Affiliates, on the one hand, or Buyer or its Affiliates, on the other hand, are adverse parties in any such audit, investigation, dispute or Litigation and (x) such books, records, information, employees and auditors are reasonably pertinent thereto or (y) such access would be in contravention of Law.
(c) Notwithstanding anything to the contrary in Section 4.2(a) or (b), Sellers (i) access rights pursuant to Section 4.2(a) or (b) shall be exercised in such manner as not to (A) interfere unreasonably with the conduct of the Business or any other business of the party granting such access or (B) jeopardize the health and safety of any person who would be involved with facilitating such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) in the case the party granting access is Buyer, that is subject to the terms of a non-disclosure agreement with a third party, (ii) that party or constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (iiB) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes is reasonably likely to constitute a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws Laws, and (iii) neither Seller nor any of its Affiliates or Representatives shall have any obligation to provide Buyer or its Representatives (A) access to any portion of any Tax Return filed by Seller or any of its Affiliates, or any related materials, in each case to the extent not relating to one of the Target Companies, (B) access to any individual personnel or payroll records, in each case to the extent not relating to one of the Company Employees or the Target Companies, or (C) access to the properties or assets of the Target Companies to conduct any subsurface or Phase II environmental investigation, or sampling or testing of any environmental medium.
(d) All information provided to Buyer pursuant to Section 4.2 prior to the Closing shall be held by Buyer as Confidential Information (as defined in the Confidentiality Agreement, dated as of June 23, 2020, between Seller and Buyer (the “Confidentiality Agreement”)) and shall be subject to the Confidentiality Agreement; provided that, notwithstanding anything to the contrary in the Confidentiality Agreement, Buyer, its Affiliates and its and their respective Representatives may disclose and use Confidential Information as required by this Agreement and the Ancillary Agreements or otherwise with Buyer’s prior written consent (which may not be unreasonably withheld, conditioned or delayed) . The Confidentiality Agreement shall automatically terminate as of the Closing Date; provided that (i) the obligations of Buyer and its Representatives (as defined in the Confidentiality Agreement) with respect to the disclosure of any Confidential Information solely pertaining to the Retained Business and (ii) the obligations of Buyer and its Affiliates with respect to the solicitation of the employees set forth on Exhibit A thereto, in each case, shall survive such termination and continue in accordance with the terms of the Confidentiality Agreement for the terms set forth therein.
(e) Subject to Section 4.23(e), Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of each Target Company relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Company Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, (iii) as may be necessary to comply with ordinary course electronic back-up practices or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or any of the nature Ancillary Agreements, in each case subject to compliance with all applicable privacy Laws. Buyer agrees that, with respect to all original books, data, files, information and records of any the Target Companies existing as of the Closing Date, it will (w) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (x) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records, (y) make the same available after the Closing for inspection and copying by Seller or its representatives (at Seller’s expense) during regular business hours and upon reasonable request and upon reasonable advance notice, and (z) for at least six years after the Closing Date, preserve and retain all such original books, data, files, information so withheld and Sellers records and Buyer shall work in good faith to make alternative arrangements to allow for thereafter dispose of such access or disclosures in a manner that does not result original books, data, files, information and records in the events set out in clauses (i) through (iv) aboveordinary course of business.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur Closing, in furtherance of the Closing Date and the termination of transactions contemplated by this Agreement in accordance with its termsAgreement, Seller shall, subject to any restrictions under applicable Law (i) upon reasonable advance written notice, Sellers give Buyer and its Representatives reasonable access to the offices, properties, books and records of the Acquired Companies, including the Owned Real Property for purposes of surveys and reasonable environmental assessments (provided that in no event shall provide Buyer or its Representatives be entitled to conduct any subsurface or Phase II environmental investigation, or sampling or testing of any environmental medium; provided, further, that all costs related to any such surveys and assessments shall be borne by Buyer), and (ii) furnish to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) Representatives such financial and Contracts of the Transferred Subsidiaries operating data and the Business (which materials will include other information relating to the extent in the possession of Sellers, copies of any existing title insurance policies Acquired Companies and surveys of the Business Real Property), provided that any its Subsidiaries as such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesPersons may reasonably request.
(b) From the date of this Agreement until the Closing, subject to any restrictions under applicable Law, Seller shall cause its Representatives serving on the Liaison Committee to reasonably cooperate with Buyer’s requests for information and assistance in connection with its preparation to integrate the Acquired Companies into Buyer’s organization following the Closing.
(c) From and after the Closing, each of Seller, on the one hand, and Buyer, on the other hand, shall afford the other party and its respective Representatives reasonable access to their respective books and records, information, employees and auditors to the extent necessary for the party requesting such access in connection with any audit, investigation, dispute or Litigation of or involving such requesting party; provided that the party requesting such access agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request.
(d) Notwithstanding anything to the contrary in this Section 4.2(a)4.02, Sellers (i) access rights pursuant to Section 4.02(a) and Section 4.02(b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access or furnishing information may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access or information to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (ivD) that is not related exclusively to the Business and (iii) neither Seller nor any of its Affiliates or Representatives shall have any obligation to provide Buyer or its Representatives access to a Parent Tax Group Return; providedReturn filed by Seller or any of its Affiliates, that such withholding party or any related materials, in each case not relating exclusively to the Acquired Companies.
(e) All information provided to Buyer prior to the Closing pursuant to this Section 4.02 shall notify the other party of the nature of any information so withheld and Sellers and be held by Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result as Evaluation Material (as defined in the events set out Confidentiality Agreement, dated as of October 28, 2020, between Seller and CMFG Life (the “Confidentiality Agreement”)) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall continue in clauses full force and effect until the Closing, at which time it shall automatically terminate. From and after the Closing: (i) through (iv) above.
(h) With respect to Seller, on the confidentiality agreements referenced in Section 1.3(b)(x)(B)one hand, at and Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)on the other hand, shall, and shall cause their Controlled respective Affiliates and Representatives to, enforce maintain in confidence matters related to the terms performance of their respective obligations under this Agreement and the Ancillary Agreements and any written, oral or other information related to the negotiation hereof and thereof, (ii) Seller shall, and shall cause its respective Affiliates and Representatives to, maintain in confidence any written, oral or other information relating to the Acquired Companies obtained by virtue of Seller’s ownership of the Acquired Companies prior to the Closing and (iii) Buyer shall, and shall cause its Affiliates and Representatives to, maintain in confidence any written, oral or other information of or relating to Seller and its Affiliates (other than information relating to the Acquired Companies) obtained by virtue of Buyer’s ownership of the Acquired Companies from and after the Closing, except, in each case, to the extent that the applicable party is required to disclose such information by judicial or administrative process or pursuant to applicable Law or such information can be shown to have been in the public domain through no fault of the applicable party. After the Closing, Buyer shall, and shall cause its Affiliates and Representatives to, use commercially reasonable efforts to promptly (and in any event within 30 days after the Closing) remove, erase, delete or otherwise destroy all information of or relating to Seller and its Affiliates (other than information relating to the Acquired Companies) (whether in print, electronic or other forms) in the possession of any employee of the Acquired Companies.
(f) Subject to Section 4.02(e), Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Acquired Companies relating to periods ending on or prior to the Closing Date (i) relating to information (including employment and medical records) regarding the Company Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, or (iii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or the Ancillary Agreements, subject to compliance with all applicable Privacy and Security Laws. Buyer agrees that, with respect to all original books, data, files, information and records of the Acquired Companies existing as of the Closing Date, it shall (A) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records and (C) for at least seven years after the Closing Date, preserve and retain all such original books, data, files, information and records and thereafter dispose of such confidentiality agreements on behalf of Buyer original books, data, files, information and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms records only after it shall have given Seller 90 days’ prior written notice of such confidentiality agreementsdisposition and the opportunity (at Seller’s expense) to remove and retain such information.
Appears in 1 contract
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier Closing, the Company shall (i) give the Buyer, its counsel, financial advisors, auditors and other authorized representatives (including the Debt Financing Sources) reasonable access to occur the offices, properties, books and records of the Closing Date Target Companies, (ii) furnish to the Buyer, its counsel, financial advisors, auditors and other authorized representatives (including the termination Debt Financing Sources) such financial and operating data and other information relating to the Target Companies as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of this Agreement the Target Companies to cooperate with the Buyer, in accordance with its terms, upon reasonable notice, Sellers shall provide to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer each case solely in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating preparation to antitrust, competition, employment or privacy issues), under consummate the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesContemplated Transactions.
(b) Notwithstanding anything Anything to the contrary in Section 4.2(a)5.2(a) notwithstanding, Sellers (i) access rights pursuant to Section 5.2(a) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and the Company shall advise Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to that the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know Company is withholding such information and who are bound by obligations of confidentiality to the disclosing party or one of shall use its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded promptly communicate to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of representatives the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction substance of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Datematerials, Sellers shallwhether by redacting parts of such materials or otherwise, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date)so that disclosure would not violate such confidentiality obligations, (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (iiB) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws Legal Requirements and (iii) none of PSRC, the Company or any of their respective Affiliates or representatives shall have any obligation to provide Buyer or its representatives (x) access to any Tax Return filed by Prometheus, the Target Companies or any of their respective Affiliates, or any related materials, in each case not relating to the Target Companies or (ivy) that is a Parent Tax Group Return; providedaccess to any individual personnel or payroll records, that such withholding party shall notify in each case not relating to the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) aboveTarget Companies.
(hc) With respect All information provided to Buyer pursuant to this Section 5.2 prior to the confidentiality agreements referenced Closing shall be held by Buyer as Evaluation Material (as defined in Section 1.3(b)(x)(Bthe Confidentiality Agreement, dated as of June 28, 2016, between Prometheus and Xxxxxxx Management LLC (the “Confidentiality Agreement”), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), ) and shall cause their Controlled Affiliates tobe subject to the Confidentiality Agreement, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreementswhich are incorporated herein by reference.
Appears in 1 contract
Samples: Stock Subscription Agreement (Providence Service Corp)
Access to Information; Confidentiality; Books and Records.
(a) Subject to Section 4.2(b), from From the date hereof until the earlier to occur Closing, in furtherance of the Closing Date and the termination of this Agreement in accordance with its terms, upon reasonable notice, Sellers shall provide to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer in connection with the transactions contemplated herebyby this Agreement, reasonable access to all propertiesSeller shall, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled cause its Affiliates (including the Transferred Subsidiaries)Company) to, subject to any restrictions under applicable Law (i) upon reasonable advance written notice, give Purchaser and its Representatives reasonable access to the Business offices, properties, Books and Records of the Company and (ii) furnish to Purchaser and its Representatives such financial and operating data and other information relating to the Company as such Persons may reasonably request.
(b) From the date of this Agreement until the Closing, subject to any restrictions under applicable Law, Seller shall, and shall cause its Affiliates (including the Company) to, cause its Representatives serving in the Transition Work Group to reasonably cooperate with Purchaser’s requests for information and assistance in connection with its preparation to integrate the Company into Purchaser’s organization following the Closing.
(c) From and after the Closing, Seller, on the one hand, and Purchaser, on the other businesses hand, shall afford the other party and its respective Representatives reasonable access to their respective Books and Records, information, employees and auditors relating to the Company or the Business, to the extent necessary for the party requesting such access in connection with any audit, investigation, dispute or Litigation of Sellers or involving such requesting party; provided that
(i) the party requesting such access agrees to reimburse the other party promptly for all reasonable and their Controlled Affiliatesdocumented out-of-pocket costs and expenses incurred in connection with any such request and (ii) access and cooperation with respect to Tax matters shall be governed solely by Section 6.04.
(bd) Notwithstanding anything to the contrary in this Section 4.2(a5.02, (i) access rights pursuant to Section 5.02(a), Sellers Section 5.02(b) and Section 5.02(f) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access or furnishing information may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) above.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28, 2023, by and between Buyer and Parent (the “Confidentiality Agreement”), and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges and agrees that Sellers and their Affiliates shall have the right to retain copies of books and records (including personnel files) of the Transferred Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Law, (ii) as may be necessary for Sellers or their Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access or information to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilegeprivilege (provided that, in any such event, the party granting access shall notify the other party in reasonable detail of the circumstances giving rise to any such privilege and use commercially reasonable efforts to seek to permit disclosure of such information to the extent possible, in a manner consistent with such privilege obligation, including by entering into a customary joint defense agreement or common interest agreement with the other party), (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (ivD) that is a Parent not related primarily or exclusively to the Business and (iii) neither Seller nor any of its Affiliates or Representatives shall have any obligation to provide Purchaser or its Representatives access to any Tax Group ReturnReturn filed by Seller or any of its Affiliates, or any related materials, in each case not relating exclusively to the Company. and its Affiliates shall be permitted to disclose
(e) All information provided to Purchaser prior to the Closing pursuant to this Section 5.02 shall be held by Purchaser as Evaluation Material (as defined in the Confidentiality Agreement, dated as of between Seller and (the “Confidentiality Agreement”)) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall continue in full force and effect until the Closing, at which time it shall automatically terminate; provided, that such withholding party shall notify Purchaser From and after the Closing: (i) Seller, on the one hand, and Purchaser, on the other party hand, shall, and shall cause their respective Affiliates and Representatives to, maintain in confidence matters related to the performance of their respective obligations under this Agreement and the Ancillary Agreements and any written, oral or other information related to the negotiation hereof and thereof, (ii) Seller shall, and shall cause its respective Affiliates and Representatives to, maintain in confidence any written, oral or other information relating to the Company obtained by virtue of Seller’s ownership of the nature Company prior to the Closing and (iii) Purchaser shall, and shall cause its Affiliates and Representatives to, maintain in confidence any written, oral or other information of or relating to Seller and its Affiliates (other than information relating to the Company) obtained by virtue of Purchaser’s ownership of the Company from and after the Closing, except, in each case, to the extent that the applicable party is required to disclose such information by judicial or administrative process or pursuant to applicable Law or such information can be shown to have been in the public domain through no fault of the applicable party. After the Closing, Purchaser shall, and shall cause its Affiliates and Representatives to, use commercially reasonable efforts to promptly (and in any event within thirty (30) days after the Closing) remove, erase, delete or otherwise destroy all information of or relating to Seller and its Affiliates (other than information relating to the Company) (whether in print, electronic or other forms) in the possession of any employee of the Company. The requirements of this Section 5.02(e) shall not apply to the extent that (i) any such any such information so withheld and Sellers and Buyer shall work in good faith is or becomes generally available to make alternative arrangements to allow for such access or disclosures in a manner that does not result the public other than (A) in the events set out case of Purchaser, as a result of disclosure by any of Seller, any of their Affiliates or any of their Representatives and (B) in the case of Seller, as a result of disclosure by Purchaser, the Company (after the Closing Date) or any of their respective Affiliates or Representatives, (ii) any such information is required or requested by applicable Law, Governmental Order or a Governmental Authority to be disclosed after prior notice has been given to the other parties (to the extent such prior notice is permitted to be given under applicable Law); provided that the disclosing party, to the extent reasonably requested by the other parties, shall cooperate with such other parties in seeking an appropriate order or other remedy protecting such information from disclosure, (iii) any such information is reasonably necessary to be disclosed in connection with any Litigation or (iv) any such information was or becomes available to such party on a non-confidential basis and from a source (other than a party to this Agreement or any Affiliate or Representative of such party) that is not bound by a confidentiality agreement with respect to such information. Each of the parties hereto shall instruct its Affiliates and Representatives having access to such information of such confidentiality obligations.
(f) Subject to Section 5.02(e), Seller and its Affiliates shall have the right to retain copies of all books, data, files, information and records in any media (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Company relating to periods ending on or prior to the Closing Date (i) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request, or (ii) as may be necessary for Seller or its Affiliates to perform their respective obligations pursuant to this Agreement or the Ancillary Agreements, subject to compliance with all applicable privacy Laws. Purchaser agrees that, with respect to all original books, data, files, information and records of the Company existing as of the Closing Date, it shall (A) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (B) apply preservation and retention policies that are no less stringent than those generally applied by Purchaser to its own books and records and (C) for at least seven years after the Closing Date, preserve and retain all such original books, data, files, information and records.
(g) From the date hereof through the Closing Date, Seller shall provide to Purchaser within following the filing thereof (i) the unaudited statutory statements of the Company as of the end of and for each calendar quarter and (ii) the annual statutory statement for the Company as of and for each calendar year (the financial statements described in clauses (i) and (ii), the “Future Financial Statements”). From the date hereof through (iv) above.the Closing Date, Seller shall provide to Purchaser promptly following completion thereof, any management financial reports, litigation reports and other material reports that are otherwise prepared for management of Seller, the Company or their respective Affiliates in the ordinary course of business consistent with past practice.
(h) With respect to From the confidentiality agreements referenced in Section 1.3(b)(x)(B)date hereof through the Closing Date, at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense)Seller shall, and shall cause their Controlled Affiliates the Company and Seller’s and the Company’s Representatives to, enforce the terms of such confidentiality agreements on behalf of Buyer as and when reasonably requested by Purchaser and at Purchaser’s expense, provide reasonable cooperation and assistance to Purchaser and its Controlled Affiliates (including in connection with presentations to and communications with any rating agency regarding the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreementsCompany.
Appears in 1 contract
Samples: Stock Purchase Agreement
Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(b), from From the date hereof until the earlier Closing, Seller shall (i) give Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to occur the offices, properties, books and records of the Closing Date Company, (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial, Tax and operating data and other information relating to the termination Company as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of this Agreement Seller and Seller’s Affiliates to cooperate with Buyer, in accordance with its terms, upon reasonable notice, Sellers shall provide to Buyer and its authorized Representatives, during normal business hours at the reasonable prior request of Buyer each case solely in connection with the transactions contemplated hereby, reasonable access to all properties, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and the Business (which materials will include to the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating preparation to antitrust, competition, employment or privacy issues), under integrate the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with Company into Buyer’s organization following the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) From and after the Closing, until the later of the sixth anniversary thereof and the expiration of the applicable statute of limitations, Seller shall, and Buyer shall cause the Company to, promptly afford the other party and its respective agents (i) reasonable access to their respective books and records, information, employees and auditors with respect to periods or occurrences prior to the Closing Date, to the extent reasonably necessary or useful for the party requesting such access and (ii) such other assistance as may reasonably be requested in connection with the preparation of any Tax Return, audit (including any audit or other examination by a taxing authority), investigation, dispute or Litigation (including any judicial or administrative proceeding relating to Taxes); provided that (x) the party requesting such access or assistance agrees to reimburse the other party promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with any such request, and (y) such access or assistance does not interfere unreasonably with the conduct of the Business or any other business of the party granting such access or assistance. Notwithstanding anything the foregoing, this Section 4.2(b) shall not apply to requests relating to Litigation (including claims pursuant to Article 7 hereof) between the Buyer and Seller or their respective Affiliates.
(c) Anything to the contrary in Section 4.2(a)) or Section 4.2(b) notwithstanding, Sellers (i) access rights pursuant to Section 4.2(a) or Section 4.2(b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the Business or any other business of the party granting such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of the a non-non disclosure agreement with a third party, (iiB) that that, as reasonably determined by such party’s counsel, constitutes privileged attorney-attorney client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iiiC) if the provision of access to such document (or portion thereof) or information, as reasonably determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws; provided, that Sellers will notify Buyer of the nature of any information so withheld Laws and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iii) aboveneither Seller nor any of its Affiliates or representatives shall have any obligation to provide Buyer or its representatives access to (A) any U.S. federal, state, local or foreign Tax Return filed by Seller or any of its Affiliates other than (I) stand-alone Tax Returns for the Company, and (II) pro forma Tax Returns (including any supporting work papers) of the Company for any Tax Return in which the Company has joined with the Seller or any of its Affiliates in filing a consolidated, combined, group or unitary Tax Return (excluding any such Tax Return in which the acquisition of Interests hereunder is treated as an asset acquisition), if any, or (B) access to any individual personnel or payroll records to the extent not relating to the Company.
(cd) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under Material (as defined in the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28February 23, 20232011, by between Altegrity, Inc. and between Buyer and Parent (the “Confidentiality Agreement”), ) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer From and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon after the Closing. For a period of seven (7) years following the Closing Date (except with respect to : (i) any trade secretSeller, which will be kept confidential for as long ason the one hand, and to Buyer, on the extent thatother hand, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled respective Affiliates and representatives to, maintain in confidence this Agreement and the Ancillary Agreements and any written, oral or other information related to keep confidentialthe negotiation hereof and thereof, (ii) Seller shall, and not disclose shall cause its respective Affiliates and representatives to, maintain in confidence any written, oral or use, except as otherwise expressly permitted herein or as required for other information relating to the performance Company obtained (A) by virtue of Seller’s ownership of the Ancillary AgreementsCompany prior to the Closing or (B) from Buyer or its Affiliates, all Business Confidential Information including the Company, following the Closing, and (iiiii) Buyer shall, and shall cause its Controlled Affiliates and representatives to, maintain in confidence any written, oral or other information of or relating to Seller (including other than information relating to the Transferred SubsidiariesCompany) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance obtained by virtue of Buyer’s ownership of the Ancillary AgreementsCompany from and after the Closing, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Informationexcept, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirementcase, to the extent permitted by Law, that the applicable party requested or is required to make disclose such disclosure (1) shall give Buyer (in the case of Business Confidential Information) information by judicial or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request administrative process or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility Law or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect can be shown to such informationhave been in the public domain through no fault of the applicable party.
(de) Buyer acknowledges Subject to Section 4.2(d), Seller and agrees that Sellers and their its Affiliates shall have the right to retain copies of books all books, data, files, information and records in any media (including personnel filesincluding, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Transferred Subsidiaries or the Business Company relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Lawrelating to information (including employment and medical records) regarding the Company Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request or (iii) as may be necessary for Sellers Seller or their its Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iiiAgreements, in each case subject to compliance with Section 4.2(d) constituting an Excluded Asset.
(e) After and all applicable Laws. Buyer agrees that, with respect to all original books, data, files, information and records of the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary Company existing as of the Closing Date, it will (ix) retain comply in all material respects with all applicable Laws relating to the preservation and retention of records, (y) apply preservation and retention policies that are no less stringent than those generally applied by Buyer to its own books and records pertaining to the Business that are in existence on and (z) for at least six years after the Closing Date or until the expiration of the applicable statute of limitations in the case of any materials related to Taxes, preserve and make retain all such original books, data, files, information and records and thereafter dispose of such original books, data, files, information and records only after it shall have given Seller ninety days’ prior written notice of such disposition and the same available for inspection and copying by Sellers and their Affiliates opportunity (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled Affiliates to reasonably cooperate with Sellers and their Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer and the Transferred Subsidiaries may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at BuyerSeller’s expense) to the extent necessary in connection with Buyer’s remove and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with retain such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereofinformation.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or (iv) that is a Parent Tax Group Return; provided, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) above.
(h) With respect to the confidentiality agreements referenced in Section 1.3(b)(x)(B), at Buyer’s written request, Sellers shall (at Buyer’s sole cost and expense), and shall cause their Controlled Affiliates to, enforce the terms of such confidentiality agreements on behalf of Buyer and its Controlled Affiliates (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms of such confidentiality agreements.
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Access to Information; Confidentiality; Books and Records. (a) Subject to Section 4.2(bapplicable Laws (including COVID-19 Measures), from the date hereof until the earlier to occur of the Closing Date and the termination of this Agreement in accordance with its terms, the Sellers shall, (i) upon reasonable noticeadvance notice during normal business hours, Sellers shall provide give Buyer, its counsel, financial advisors, auditors and other Representatives reasonable access to the books and records, properties and facilities of the Business, the Transferred Companies and their respective Subsidiaries, (ii) furnish to Buyer and its authorized RepresentativesRepresentatives such additional financial and operating data and other information regarding the Business as Buyer may from time to time reasonably request for purposes of preparing to operate the Business following the Closing (including any actions or work relating to transition services) and (iii) make available to Buyer and its Representatives those employees of the Seller Group and the Subject Companies whose assistance, during normal business hours at the reasonable prior request of expertise, testimony, notes and recollections or presence may be necessary to assist Buyer in connection with its inquiries for any of the purposes referred to above; in each case, exclusively for purposes related to the transactions contemplated hereby, reasonable access hereby and/or preparing to all properties, books, records (excluding personnel files) and Contracts of the Transferred Subsidiaries and operate the Business (which materials will include to following the extent in the possession of Sellers, copies of any existing title insurance policies and surveys of the Business Real Property), provided that any such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues), under the supervision of Sellers’ or their Controlled Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere with the normal operations of Sellers and their Controlled Affiliates (including the Transferred Subsidiaries), the Business and the other businesses of Sellers and their Controlled AffiliatesClosing.
(b) Notwithstanding anything to the contrary in Section 4.2(a), Sellers (i) access rights pursuant to Section 4.2(a) shall be at Buyer’s sole expense and exercised in such manner as not to (A) interfere unreasonably with the normal business operations of the Transferred Companies or their respective Subsidiaries or (B) jeopardize the health and safety of any person who would be involved with facilitating such access, (ii) the party granting access may withhold any document (or portions thereof) or information (iA) that is subject to the terms of a non-disclosure agreement with a third party, (iiB) that constitutes privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or privilege, (iiiC) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, information would reasonably be expected to conflict with applicable LawsLaws or (D) regarding the Sellers’, the Transferred Companies’ or any of their respective Subsidiaries’ entry into or conduct of a competitive sale process prior to the execution of this Agreement and (iii) neither the Sellers nor any of their Affiliates or representatives shall have any obligation to provide Buyer or its representatives access to (A) any Consolidated or Combined Returns filed by the Sellers or any of their Affiliates, or any related materials, (B) any other Tax Return filed by the Sellers or any of their Affiliates, or any related materials, in each case set forth in this clause (iii)(B) not primarily related to the Business or one of the Transferred Companies or its respective Subsidiaries, (C) any individual personnel or payroll records, in each case not relating exclusively to one of the Transferred Companies or their respective Subsidiaries or (D) any real property owned or leased by the Transferred Companies or their respective Subsidiaries for purposes of conducting any invasive environmental sampling or testing; provided, however, that in respect of clause (ii)(A) above, the Sellers will notify Buyer of shall use commercially reasonable efforts to obtain any consent or waiver necessary from the nature of Person to whom any information so withheld and Sellers and Buyer contractual non-disclosure obligation is owed; with respect to clause (ii)(B) above, the parties shall work cooperate in good faith to make alternative develop substitute arrangements that would not reasonably be excepted to allow for such access or disclosures in a manner that does not result in the events set out in clauses loss of attorney-client privilege; and with respect to clause (i) through (iiiii)(C) above, the parties shall cooperate in good faith to develop substitute arrangements that would not reasonably be expected to conflict with applicable Laws.
(c) All information provided to Buyer pursuant to this Section 4.2 prior to the Closing shall be held by Buyer as “Evaluation Material” under Material (as defined in the terms of that certain Confidentiality and Nondisclosure Agreement, dated as of July 28September 11, 20232020, by between Domtar and between Buyer and Parent AIP, LLC (the “Confidentiality Agreement”), ) and shall be subject to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Buyer and Sellers agree that, if the Closing occurs, the Confidentiality Agreement shall automatically terminate effective upon the Closing. For a period of seven (7) years following the Closing Date (except with respect to (i) any trade secret, which will be kept confidential for as long as, and to the extent that, it remains a trade secret under applicable Law and (ii) any information related to any Owned PMA or Owned DER, which will be kept confidential for the longer of (x) seven (7) years following the Closing Date and (y) so long as such information is retained), (i) Sellers shall, and shall cause their Controlled Affiliates to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Business Confidential Information and (ii) Buyer shall, and shall cause its Controlled Affiliates (including the Transferred Subsidiaries) to keep confidential, and not disclose or use, except as otherwise expressly permitted herein or as required for the performance of the Ancillary Agreements, all Excluded Confidential Information; provided that Sellers and their Controlled Affiliates may disclose Business Confidential Information and Buyer and its Controlled Affiliates may disclose Excluded Confidential Information, in each case (A) to the extent requested or required under any Law, rule or regulation applicable to such party, including reporting required under the Exchange Act, or as required by any Governmental Authority to be disclosed or (B) to their respective Controlled Affiliates and their and their respective Controlled Affiliates’ directors, offices, employees, agents and advisors (including auditors, legal counsel and insurance providers) who need to know such information and who are bound by obligations of confidentiality to the disclosing party or one of its Controlled Affiliates with respect to such information; provided, that, in the event of any such request or requirement, to the extent permitted by Law, the party requested or required to make such disclosure (1) shall give Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) prompt written notice of such request or requirement so that such other party may seek an appropriate protective order or other remedy or waive compliance, in whole or in part, with the non-disclosure terms of this Agreement as to such required, (2) may furnish only that portion of the Business Confidential Information or Excluded Confidential Information, as applicable, that, in the written opinion of its counsel, must be disclosed, (3) shall exercise reasonable best efforts to assist Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information) (at such other party’s expense) in obtaining reliable assurance that confidential treatment will be accorded to such Business Confidential Information or Excluded Confidential Information, as applicable, and (4) shall provide Buyer (in the case of Business Confidential Information) or Sellers (in the case of Excluded Confidential Information), as far in advance as is practical, the nature, scope and contents of all Business Confidential Information or Excluded Confidential Information, as applicable, that will be furnished by such party or its Controlled Affiliates. It is understood that the foregoing shall not restrict Sellers, Buyer or their respective Controlled Affiliates from making such disclosure as Sellers, Buyer or their respective Controlled Affiliates, as applicable, deem appropriate in their reasonable judgment (x) in connection with any issuance, incurrence or refinancing of any Indebtedness (including in any relevant offering documents or information memoranda or other marketing materials), including the Financing, (y) in connection with any repayment or repurchase offer to the holders of Indebtedness under the Securitization Facility or any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates pursuant to the terms thereof or (z) pursuant to applicable reporting obligations under the Securitization Facility or the terms of any other Indebtedness of Sellers, Buyer or their respective Controlled Affiliates, in each case so long as the recipients of such information are bound by customary confidentiality obligations with respect to such information.
(d) Buyer acknowledges Subject to Section 4.2(c) (applied on a mutatis mutandis basis as if the Sellers and agrees that their Affiliates were AIP, LLC and as if the Confidentiality Agreement were in effect throughout the period during which the Sellers and such Affiliates retain any such copies), the Sellers and their Affiliates shall have the right to retain copies of books all books, data, files, information and records in any media (including personnel filesincluding, for the avoidance of doubt, Tax Returns and other information and documents relating to tax matters) of the Transferred Companies and their respective Subsidiaries or the Business relating to periods ending on or prior to the Closing Date (i) as may be required by applicable Lawrelating to information (including employment and medical records) regarding the Continuing Employees, (ii) as may be required by any Governmental Authority, including pursuant to any applicable Law or regulatory request or pursuant to any corporate governance or recordkeeping policy of the Sellers or any of their respective Affiliates or (iii) as may be necessary for the Sellers or their respective Affiliates to perform their respective obligations pursuant to this Agreement or any of the Ancillary Agreements or (iii) constituting an Excluded Asset.
(e) After as may be reasonably necessary for the Closing Date, Buyer shall, and shall cause the Transferred Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, (i) retain all material books and records pertaining to the Business that are in existence on the Closing Date and make the same available for inspection and copying by Sellers and their Affiliates (at Sellers’ expense) to the extent necessary in connection with Sellers’ and their Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to Sellers and their Affiliates ownership of the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Buyer or its Controlled Affiliates) against Sellers or their Controlled Affiliates relating to pre-Closing matters of the Business, and (ii) instruct the employees, counsel and financial advisors of Buyer and its Controlled respective Affiliates to reasonably cooperate with Sellers and conduct their Affiliates in connection with such purposesrespective businesses, in each case during normal business hours, upon reasonable request subject to compliance with all applicable privacy Laws and upon reasonable notice and in a manner so as to not unduly interfere with the normal business operations of Buyer and any of its Controlled Affiliates; provided that Buyer or the Subject Companies are not otherwise restricted from doing so pursuant to any applicable Laws or Contract (provided, however, that Buyer shall use commercially reasonable efforts to obtain any consent or waiver necessary from the Person to whom any contractual obligation is owed and the Transferred Subsidiaries may, prior parties shall cooperate in good faith to the seventh (7th) anniversary, elect to destroy any such information so long as Buyer notifies Sellers in writing at least sixty (60) days prior to the destruction of any such information and give Sellers a reasonable opportunity to obtain possession thereof.
(f) After the Closing Date, Sellers shall, and shall cause their respective Controlled Affiliates to, until the seventh (7th) anniversary of the Closing Date (and, with respect to any information set forth in the following clause (i) pertaining to any Taxes or Tax Returns of TASA, until the tenth (10th) anniversary of the Closing Date), (i) retain all material books and records (excluding personnel files) pertaining to the Business develop substitute arrangements that are in existence on the Closing Date (and retained by Sellers pursuant to the terms of this Agreement) and make the same available for inspection and copying by Buyer and its Affiliates (at Buyer’s expense) to the extent necessary in connection with Buyer’s and its Affiliates’ ongoing financial reporting, accounting, regulatory filings, Tax Returns or other similar purpose related to the Business prior to the Closing or any pending or threatened Litigation, claim or demand asserted by a third party (excluding Sellers or their Controlled Affiliates) against Buyer or its Controlled Affiliates relating to the Business, and (ii) instruct the employees, counsel and financial advisors of Sellers and their Controlled Affiliates to reasonably cooperate with Buyer and its Affiliates in connection with such purposes, in each case during normal business hours, upon reasonable request and upon reasonable notice and in a manner so as to would not unduly interfere with the normal business operations of Sellers and any of their Controlled Affiliates; provided that Sellers and their Controlled Affiliates may, prior to the seventh (7th) anniversary, elect to destroy any such information so long as Sellers notify Buyer in writing at least sixty (60) days prior to the destruction of any such information and give Buyer a reasonable opportunity to obtain possession thereof.
(g) Notwithstanding anything to the contrary in Section 4.2(c) or Section 4.2(f), Buyer or Sellers, as the case may be, may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege, (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to conflict with applicable Laws or Laws, as applicable). Buyer agrees that, subject to Section 4.2(b) (iv) that is a Parent Tax Group Return; providedapplied, that such withholding party shall notify the other party of the nature of any information so withheld and Sellers and Buyer shall work in good faith to make alternative arrangements to allow for such access or disclosures in a manner that does not result in the events set out in clauses (i) through (iv) above.
(h) With with respect to the confidentiality agreements referenced covenants set forth in Section 1.3(b)(x)(B)this sentence, at Buyer’s written requeston a mutatis mutandis basis) with respect to all original books, data, files, information and records of either of the Transferred Companies and their respective Subsidiaries existing as of the Closing Date, it will (w) comply in all material respects with all applicable Laws relating to the preservation and retention of records, (x) apply sound and reasonable preservation and retention policies that in any event are no less stringent than those generally applied by Buyer to its own books and records, (y) make the same available after the Closing for inspection and copying by the Sellers shall or their representatives (at Buyer’s sole cost the Sellers’ expense) during regular business hours and expense)upon reasonable request and upon reasonable advance notice for the purposes described in the immediately preceding sentence and (z) for at least seven (7) years after the Closing Date or, if longer, for at least as long as required by applicable Law, preserve and shall cause their Controlled Affiliates toretain all such original books, enforce the terms data, files, information and records and, during such period, dispose of such confidentiality agreements on behalf of Buyer original books, data, files, information and its Controlled Affiliates records only after it shall have given the Sellers thirty (including the Transferred Subsidiaries), including seeking specific performance or other equitable relief under the terms 30) days’ prior written notice of such confidentiality agreementsdisposition and a reasonable opportunity (at the Sellers’ expense) to remove and retain such information.
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