Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company shall, and shall cause each Company Subsidiary to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective Time, to all their respective properties, books and records and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other information concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”). (b) Without limiting the generality of Section 7.02(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s existing businesses.
Appears in 2 contracts
Samples: Merger Agreement (Carbonite Inc), Merger Agreement (Open Text Corp)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance notice, during the period prior notice to the Effective TimeSeller, to all their respective properties, Seller's books and records and, during such periodto the extent directly relating to the Conveyed Assets, the Company shallAssumed Liabilities and the Business (excluding confidential personnel and medical records), and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information in Seller's possession concerning its businessthe Conveyed Assets, properties the Assumed Liabilities and personnel the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to interfere with the operation of the Business. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information which would violate applicable Law, result in a breach of attorney-client privilege or make similar privilege, or violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to which Seller is a party and (ii) Seller may redact such disclosureportions of its books and records that do not directly relate to the Conveyed Assets, the Assumed Liabilities and the Business.
(b) Information disclosed to Purchaser pursuant to this Agreement (including in the Seller Disclosure Schedule) shall be held as Evaluation Material (as defined in the Non-Disclosure Agreement, dated as of March 12, 2003, by and between Seller and Purchaser (as amended, the "Non-Disclosure Agreement")) and shall be subject to the Non-Disclosure Agreement; and Purchaser, in accordance therewith, shall cause its Representatives (as defined in the Non-Disclosure Agreement) to treat as Evaluation Material all of the information provided by Seller pursuant to this Agreement and not to use such information except in connection with the transactions contemplated hereby and otherwise in accordance with the Non-Disclosure Agreement. The Non-Disclosure Agreement shall survive the Closing and continue in full force and effect thereafter.
(c) Following the Closing, for so long as such information is retained by Purchaser (which shall be for a period of at least six years), Purchaser shall permit Seller and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the Conveyed Assets, Assumed Liabilities and the Business with respect to the period prior to Closing, to the extent it determinesthat such access may be reasonably required (i) in connection with the preparation of Seller's accounting records or with any audits, after consultation (ii) in connection with outside counselany suit, claim, action, proceeding or investigation relating to the Business, (iii) in connection with any regulatory filing or matter, or (iv) in connection with any other valid legal or business purpose of Seller; provided, that Seller shall reimburse Purchaser promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Purchaser in connection with any such disclosure request, so long as Purchaser shall have obtained Seller's written consent prior to incurring any such cost or access expense for which it seeks reimbursement
(d) Purchaser shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information which would (a) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) applicable Law, result in the loss a breach of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client similar privilege); or (c) , violate any Law confidentiality or nondisclosure agreement or similar agreement or arrangement to which Purchaser is a party and (provided ii) Purchaser may redact such books and records that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does do not violate Law). Notwithstanding anything contained in this Agreement directly relate to the contraryConveyed Assets, Assumed Liabilities or the Company Business.
(e) Following the Closing, for so long as such information is retained by Seller (which shall not be required for a period of at least six years), Seller shall permit Purchaser and its authorized representatives to provide any have reasonable access or make any disclosure during normal business hours, upon reasonable prior notice to Parent pursuant Seller, to this Section 7.02 the Retained Information to the extent such access may be reasonably required (i) in connection with the preparation of Purchaser's accounting records or information is reasonably pertinent to a litigation where the Company with any audits, (ii) in connection with any suit, claim, action, proceeding or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject investigation relating to the Business, (iii) in connection with any regulatory filing or matter, or (iv) in connection with any other valid legal or business purpose of Purchaser; provided, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Seller in connection with any such request. Seller shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information which would violate applicable Law, result in a breach of attorney-client privilege or similar privilege, violate any confidentiality agreementor nondisclosure agreement or similar agreement or arrangement to which Seller is a party and (ii) Seller may redact such portions of the Retained Information that do not directly relate to the Conveyed Assets, dated as of June 21, 2019 between Parent and the Company (Assumed Liabilities or the “Confidentiality Agreement”)Business.
(bf) Without limiting Purchaser shall, and shall instruct its employees to, at Seller's request, cooperate with Seller as may be reasonably required in connection with the generality investigation and defense of Section 7.02(a)any suit, during claim, action, proceeding or investigation relating to the period from Business in existence as of the date of this Agreement to or that is brought against Seller or any of its Affiliates at any time after the earlier date of this Agreement; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Purchaser in connection with any such request.
(g) Following the Closing Closing, Seller shall, and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees shall instruct its employees to, and to cause the Company Subsidiaries toat Purchaser's request, subject to applicable Law and Section 7.02(a) cooperate with Purchaser as may be reasonably required (i) reasonably assist in connection with the investigation and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration defense of any suit, claim, action, proceeding or investigation set forth on Section 2.2 (a)(vi) of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan)Seller Disclosure Schedule, (ii) provide reasonable access in order to key personnel identified by Parent respond to facilitate Parent’s efforts inquiries or requests from Governmental Entities with respect to the postconduct of the Business during the period prior to Closing; provided, however, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-Closing retention of-pocket costs and expenses incurred by Seller in connection with any such request; and provided, further, that such cooperation shall not materially interfere with Seller's conduct of such key personnel and its business or with Seller's employees' performance of their duties to Seller.
(iiih) provide Parent with reasonable periodic updates on activities relating Prior to the integration Closing and in anticipation thereof, Purchaser and Seller shall use their best efforts to resolve all open issues (e.g. scope of services, pricing and other terms) in the Transition Services Agreement (including without limitation the Annexes thereto), and to execute a Transition Services Agreement in form and substance substantially similar to Exhibit C hereto, and Purchaser and Seller shall each coordinate and consult with the other with respect to the delivery of services contemplated by the Transition Services Agreement to facilitate the delivery thereof from and after the Closing Date in accordance with the terms set forth therein. Pricing of the Company’s existing businessesservices set forth on the Annexes to the Transition Services Agreement shall be based upon Seller's reasonable, good faith estimate of the actual cost to Seller of providing such services at the levels of service anticipated to be required by Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Susquehanna Media Co), Asset Purchase Agreement (RCN Corp /De/)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable LawFrom the date hereof until the earlier of the Effective Time or the date on which this Agreement is terminated in accordance with its terms, the Company shall, and shall cause each Company Subsidiary to, afford to Parent Parent, and to the Representatives of Parent Parent's officers, employees, accountants, counsel, financial advisors, financing sources and other representatives, reasonable access during normal business hours, hours and upon reasonable advance notice, prior notice from Parent during the period prior to the Effective Time, Time to all their respective properties, books books, contracts, commitments, personnel and records and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent (a) a copy of each material report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of supranational, national, federal, state, local or municipal (whether domestic or foreign) Law and (b) all other information concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related request. All information exchanged pursuant to this Section 6.03 shall be subject to the consummation Mutual Non-Disclosure Agreement dated as of the transactions contemplated by this Agreement (in each caseJanuary 30, in a manner so as to not interfere in any material respect with the normal business operations of 2008 between the Company or any Company Subsidiaryand Parent (the "Confidentiality Agreement"); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the . The Company shall use its commercially reasonable best efforts to obtain facilitate access to the required consent Company's customers, partners and prime contractors of such third party Material Contracts to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that which the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in Company Subsidiary is a loss of attorney-client privilege); or (c) violate any Law (provided that subcontractor, including without limitation joint venture and teaming partners, by Parent and Parent's officers, employees, accountants, counsel, financial advisors, financing sources and other representatives, either together with the Company shall use its commercially reasonable efforts or otherwise with the Company's prior written consent, during normal business hours prior to provide such access or make such disclosure in a manner that does not violate Law)the Effective Time for the purpose of discussions and information requests. Notwithstanding anything contained in this Agreement to the contraryforegoing, the Company shall not be required to provide access to, or cause the Company Subsidiaries to provide access to, any access information or make documents which would, in the reasonable judgment of the Company, (i) breach any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where agreement of the Company or any Company Subsidiary with any third-party including for these purposes considerations regarding the terms reasonably expected to be included in a Special Security Agreement or other agreement to mitigate FOCI), (ii) constitute a waiver of its Affiliates, on the one hand, and Parent attorney-client or other privilege held by the Company or any Company Subsidiary, (iii) otherwise violate any applicable Laws, or (iv) which would result in a competitor of its Affiliates, on the other hand, are adverse partiesCompany or any Company Subsidiary receiving material information which is competitively sensitive. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (shall cooperate and consult with each other to develop announcement materials and undertake discussions with customers, partners and prime contractors of Material Contracts to which the “Confidentiality Agreement”)Company or a Company Subsidiary is a subcontractor, and make appropriate management available at presentations related to the transactions contemplated by this Agreement as reasonably requested by the other party, in each case, in a manner that would not unreasonably interfere with the conduct of the business of the Company and the Company Subsidiaries.
(b) Without limiting Parent shall use its reasonable efforts to (i) arrange and implement the generality of Section 7.02(aFinancing on the terms and conditions described in the Commitment Letter (together, the "Financing Commitments"), (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments (or on revised terms no less favorable in any material respect to Parent (as determined in the reasonable judgment of Parent)), which agreements shall be in effect as promptly as practicable after the date hereof in no event later than the Closing, and (iii) consummate the financing under the Commitment Letter no later than the Closing. In the event that any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Financing Commitments, (A) Parent shall promptly notify the Company in writing and (B) Parent and Sub shall use their reasonable best efforts to arrange to obtain any such portion from alternative sources, on terms that are no more adverse in any material respect (the "Alternative Financing Commitments"), as promptly as reasonably practicable following the occurrence of such event, including entering into definitive agreements with respect thereto (such definitive agreements entered into pursuant to the first or second sentence of this Section being referred to as the "Financing Agreements"). Parent and Sub shall, and shall cause their affiliates and Representatives to, use their reasonable efforts to comply with the terms, and satisfy on a timely basis the conditions that are within their control of the Financing Commitments, any Alternative Financing Commitments, the Financing Agreements and any related fee and engagement letters, except for any failure to so comply or satisfy that would not materially adversely affect Parent's or Sub's ability to perform its obligations upon Closing of the Merger. Parent shall (x) furnish complete, correct and executed copies of the Financing Agreements promptly upon their execution, (y) give the Company prompt notice of any material breach by any party of any of the Financing Commitments, any Alternative Financing Commitment or the Financing Arrangements of which Parent or Sub becomes aware or any termination thereof and (z) otherwise keep the Company informed on a reasonably current basis, at all times during the period from between the date hereof and the Closing, of this Agreement any material developments regarding its efforts to arrange the Financing (or any replacement thereof). From the date hereof until the earlier of the Closing and Effective Time, the datedate on which this Agreement is terminated in accordance with its terms, if any, or the date on which the Agreement is validly terminated pursuant to and in accordance with Article IXBoard shall have made an Adverse Recommendation Change, the Company agrees toshall provide to Parent and Sub, and to shall cause the Company Subsidiaries to, subject and shall use its reasonable best efforts to applicable Law cause the respective officers, employees and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration Representatives of the Company and the Company Subsidiaries with to, provide to Parent and Sub and any affiliate of Parent designated by Parent all cooperation reasonably requested by Parent that is necessary or reasonably required in connection with the financing to be provided under the Commitment Letter and any equity, debt or other securities issuance or loan to refinance or to replace all or any part of such financing (together, the "Financing"), including the following: (i) causing the Company's senior officers and using its reasonable best efforts to cause its other Representatives to participate in meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies; (ii) assisting with the preparation of appropriate and customary materials for rating agency presentations, offering documents, bank information memoranda (including the delivery of customary representation letters) and similar documents reasonably required in connection with the Financing; (iii) assist with the preparation of, and executing, any pledge and security documents, any loan agreement, currency or interest hedging agreement, other definitive financing documents on terms reasonably satisfactory to Parent, or other certificates, legal opinions or documents as may be reasonably requested by financing sources and reasonable and customary for receiving equivalent financing, to become effective only on or after the Effective Time; (iv) facilitate or execute the pledging of collateral; (v) using reasonable best efforts to furnish on a confidential basis to Parent and Sub and their financing sources, as promptly as practicable, with financial and other pertinent information regarding the Company and in the Company's possession or control as may be reasonably requested by financing sources, including all financial statements and other financial data as may be reasonably required and customary in receiving equivalent financing; (vi) providing monthly financial statements to the extent the Company customarily prepares such financial statements within the time such statements are customarily prepared; and (vii) using reasonable best efforts to cause its independent accountants to cooperate with and assist Parent in preparing customary and appropriate information packages and offering materials as the parties to the Financing may reasonably request for use in connection with the offering and/or syndication of equity securities, debt securities, loan participations and other matters relating to the Financing; provided that nothing in this Agreement shall require senior officers and other Representatives of the Company to participate in meetings, presentations, road shows, due diligence sessions in a manner that would unreasonably interfere with the conduct of the Company's or such Representatives' business; provided further that notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company nor any of its Subsidiaries (includingshall be required to pay any commitment or other similar fee or put in effect any collateral, encumbrance, pledge or similar arrangement with respect to any of the Company's or the Company Subsidiaries' assets. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs to the extent such costs are incurred by the Company or its subsidiaries at the request of Parent in connection with such cooperation provided by the Company, the Company Subsidiaries, their respective officers, employees and other Representatives pursuant to the terms of this Section 6.03(b) or in connection with compliance with its obligations under this Section 6.03(b) and Parent shall indemnify and hold harmless the Company and the Company Subsidiaries and their respective officers, employees and Representatives from time to timeand against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than arising from information provided in writing by the Company or any Company Subsidiary specifically for use in connection with the Financing or its subsidiaries), reasonably assisting and cooperating with Parent and its Subsidiaries except in the planning and development event such liabilities or losses arose out of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to or result from the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration wilful misconduct or gross negligence of the Company’s existing businesses, any of its subsidiaries or any of their respective Representatives. The Company hereby consents to the use of its and its subsidiaries' logos in connection with the Financing. Notwithstanding anything to the contrary contained herein, in no event shall the Company or any Company Subsidiary be required to incur, guarantee or otherwise become an obligor on any indebtedness, grant any lien or pledge any assets, or otherwise enter into any agreement or action as part of the Financing that would be or otherwise cause a Default under any of the Indentures governing the Notes.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance noticeprior notice to Seller, during the period prior to Seller's properties, books, records, contracts, commitments and personnel relating to the Effective Time, to all their respective properties, books and records and, during such periodConveyed Assets, the Company shallAssumed Liabilities or the Business, and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information concerning its businessthe Conveyed Assets, properties and personnel the Assumed Liabilities or the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to materially interfere with the operation of Seller's business. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information that would violate applicable Law, result in a breach of attorney-client privilege or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with similar agreement or arrangement to which Seller is a third party and (provided ii) Seller may redact such portions of its books and records that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does do not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement directly relate to the contraryConveyed Assets, the Company shall not be required to provide any access Assumed Liabilities or make any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)Business.
(b) Without limiting the generality of Purchaser will, and will cause its representatives to, hold any such information obtained pursuant to Section 7.02(a)5.2(a) in confidence, during the period from the date of this Agreement except to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) extent any such information (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development is or becomes publicly available other than as a result of a post-Closing integration planbreach of this Section 5.2(b), (ii) provide reasonable access is or becomes available to key personnel identified Purchaser on a non-confidential basis from a source other than Seller, provided that such source is not known to Purchaser to be bound by Parent a confidentiality agreement with Seller or otherwise prohibited from transmitting the information to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and Purchaser by a contractual, legal or fiduciary obligation, (iii) provide Parent with was in the possession of Purchaser prior to its being furnished to it by Seller, (iv) has been or is independently developed by Purchaser or (v) is required to be disclosed by Law or Governmental Entity.
(c) Following the Closing, for so long as such information is retained by Purchaser (which shall be for no less than the period of time that Purchaser customarily would retain similar information), Purchaser shall permit Seller and its authorized representatives to have reasonable periodic updates on activities access during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the integration Conveyed Assets, the Assumed Liabilities or the conduct of the Company’s existing businessesBusiness by Seller, to the extent that such access may be reasonably required (i) in connection with the preparation of Seller's accounting records or with any audits, (ii) in connection with the preparation of any Tax Returns or with any Tax audits, (iii) in connection with any suit, claim, action, proceeding or investigation relating to Seller's conduct of the Business or (iv) in connection with any regulatory filing or matter; provided, that such access shall be conducted in such a manner as not to materially interfere with Purchaser's business, and provided, further, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information which would violate applicable Law, result in a breach of attorney-client privilege or violate any confidentiality agreement or similar agreement or arrangement to which Purchaser is a party and (ii) Purchaser may redact such portions of its books and records that do not directly relate to the Conveyed Assets, the Assumed Liabilities or the Business. Purchaser may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided to Seller under this Section 5.2(c) as available to "outside counsel and retained experts only."
(d) Purchaser shall, and shall instruct its employees to, at Seller's request, cooperate with Seller as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the Business that is brought against Seller or any of its Affiliates at any time after the Closing; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request.
(e) Seller shall, and shall instruct its employees to, at Purchaser's request, cooperate with Purchaser as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the Business that is brought against Purchaser or any of its Affiliates at any time after the Closing; provided, however, that Purchaser shall reimburse Seller promptly for all reasonable out-of-pocket costs and expenses incurred by Seller in connection with any such request.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance noticeprior notice to Seller, during to Seller’s properties (including the period prior Equipment), books, records, contracts, commitments and personnel relating to the Effective Time, to all their respective properties, books and records and, during such period, Conveyed Assets or the Company shallAssumed Liabilities, and Seller shall cause each Company Subsidiary to, use reasonable best efforts to furnish reasonably promptly to Parent all other Purchaser such information concerning its business, properties and personnel the Conveyed Assets or the Assumed Liabilities as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to unreasonably interfere with the operation of Seller’s business. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information that would violate applicable Law or make any confidentiality agreement or similar agreement or arrangement to which Seller is a party and (ii) Seller may redact such disclosureportions of its books and records that do not directly relate to the Conveyed Assets or the Assumed Liabilities. Seller may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided to Purchaser under this Section 5.2(a) as available to “outside counsel and retained experts only.”
(b) Following the Closing, for so long as such information is retained by Purchaser (which shall be for no less than the period of time that Purchaser customarily would retain similar information), Purchaser shall permit Seller and their respective authorized representatives to have reasonable access during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the Conveyed Assets or the Assumed Liabilities, to the extent it determinesthat such access may be reasonably required (i) in connection with the preparation of Seller’s accounting records or with any audits, after consultation (ii) in connection with outside counselthe preparation of Seller’s Tax Returns or with any Tax audits, (iii) in connection with any suit, claim (including warranty claims in respect of any Equipment), action, proceeding or investigation relating thereto or (iv) in connection with any regulatory filing or matter; provided, that any such disclosure access shall be conducted in such a manner as not to unreasonably interfere with Purchaser’s business, and provided, further, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information that would violate applicable Law or access would (a) violate the terms of any confidentiality agreement or other Contract with similar agreement or arrangement to which Purchaser is a third party and (ii) Purchaser may redact such portions of its books and records that do not directly relate to the Conveyed Assets or the Assumed Liabilities. Purchaser may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party Seller under this Section 5.2(b) as available to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or “outside counsel and retained experts only.”
(c) violate any Law (provided that the Company shall use its commercially reasonable efforts Seller agrees to provide, or to provide access to, accounting work papers and to provide such access management representation letters to Purchaser and Purchaser’s accountants as Purchaser or make Purchaser’s accountants may reasonably request, and to otherwise reasonably cooperate with Purchaser and Purchaser’s accountants, in connection with the preparation of any audited financial statements that may be required following the Closing; provided, that that Purchaser shall reimburse Seller promptly for all reasonable out-of-pocket costs and expenses incurred by Seller in connection with any such disclosure cooperation.
(d) Purchaser shall, and shall instruct its employees to, at Seller’s request, cooperate with Seller as may be reasonably required in a manner that does not violate Lawconnection with the investigation and defense of any suit, claim (including warranty claims in respect of any Equipment). Notwithstanding anything contained in this Agreement , action, proceeding or investigation relating to the contraryConveyed Assets that is brought against Seller or any of their respective Affiliates at any time after the Closing; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request.
(e) Seller shall, and shall instruct their respective employees to, at Purchaser’s request, cooperate with Purchaser as may be reasonably required in connection with the Company shall not be required to provide investigation and defense of any access suit, claim (including warranty claims in respect of any Equipment), action, proceeding or make any disclosure to Parent pursuant to this Section 7.02 investigation relating to the extent such access or information Conveyed Assets that is reasonably pertinent to a litigation where the Company brought against Purchaser or any of its AffiliatesAffiliates at any time after the Closing; provided, on the one handhowever, that Purchaser shall reimburse Seller promptly for all reasonable out-of-pocket costs and Parent or expenses incurred by Seller in connection with any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)such request.
(b) Without limiting the generality of Section 7.02(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s existing businesses.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Closing, Seller shall permit Purchaser and its authorized Representatives of Parent to have reasonable access during normal business hours, upon reasonable advance notice, during the period prior notice to the Effective TimeSeller, to all their respective properties, Seller’s books and records and, during such periodto the extent directly relating to the Conveyed Assets, the Company shallAssumed Liabilities and the Business (excluding personnel and medical records that Seller is prohibited from disclosing pursuant to any Law), and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information in Seller’s possession concerning its businessthe Conveyed Assets, properties the Assumed Liabilities and personnel the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access or make shall be conducted in such disclosurea manner as not to materially interfere with the operation of the Business. Notwithstanding the foregoing, (i) Seller need not disclose to the extent it determines, after consultation with outside counsel, that such disclosure or access Purchaser any information which would (aA) violate applicable Law, (B) result in a breach of attorney-client privilege or similar privilege, (C) violate the terms of any confidentiality or non-disclosure agreement or other Contract with similar agreement to which Seller is bound, or (D) breach any duty of confidentiality owed to a third party third-party, and (provided ii) Seller may redact such portions of its books and records that do not directly relate to the Company shall use its commercially reasonable efforts to obtain Conveyed Assets, the required consent of such third party to such access or disclosure); Assumed Liabilities and the Business.
(b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts Information disclosed to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent Purchaser pursuant to this Section 7.02 to Agreement and in connection with the extent such access or transactions contemplated hereby (including all information is reasonably pertinent to a litigation where set forth in the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 Seller Disclosure Schedule) shall be subject to held as Proprietary Information (as defined in the confidentiality letter agreement, dated as of June 213, 2019 2005, by and between Parent Seller and the Company Purchaser (the “Confidentiality Agreement”)) and shall be subject to the Confidentiality Agreement; and Purchaser, in accordance therewith, shall cause its Representatives (as defined in the Confidentiality Agreement) to treat as Proprietary Information all of the information provided by Seller pursuant to this Agreement and not to use such information except in connection with the transactions contemplated hereby and otherwise in accordance with the Confidentiality Agreement.
(bc) Without limiting Following the generality Closing, for so long as such information is retained by Purchaser (which shall be for a period of Section 7.02(aat least six years), Purchaser shall permit Seller and its authorized Representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the Conveyed Assets, Assumed Liabilities and the Business, to the extent that such access may be reasonably required (i) in connection with the preparation of Seller’s accounting records or with any audits, (ii) in connection with any suit, claim, action, proceeding or investigation relating to the Business, (iii) in connection with any regulatory filing or matter or (iv) in connection with any other valid legal or business purpose of Seller. Purchaser shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information which would violate applicable Law, result in a breach of attorney client privilege on similar privilege, violate any confidentiality or non-disclosure agreement or similar agreement or arrangement to which Purchaser is a party or is proprietary in nature, and (ii) Purchaser may redact such books and records that do not directly relate to the Conveyed Assets, Assumed Liabilities or the Business.
(d) Following the Closing, for so long as such information is retained by Seller (which shall be for a period from of at least six years), Seller shall permit Purchaser and its authorized Representatives to have reasonable access during normal business hours, upon reasonable prior notice to Seller, to the Retained Information to the extent such access may be reasonably required (i) in connection with the preparation of Purchaser’s accounting records or with any audits, (ii) in connection with any suit, claim, action, proceeding or investigation relating to the Business, (iii) in connection with any regulatory filing or matter or (iv) in connection with any other valid legal or business purpose of Purchaser. Seller shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information which would violate applicable Law, result in a breach of attorney-client privilege or similar privilege, violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to which Seller is a party or is proprietary in nature and (ii) Seller may redact such portions of the Retained Information that do not directly relate to the Conveyed Assets, the Assumed Liabilities or the Business.
(e) Following the Closing, Purchaser shall, and shall instruct its employees to, at Seller’s request, cooperate with Seller as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the Business in existence as of the date of this Agreement or that is brought against Seller or any of its Affiliates at any time after the date of this Agreement; provided, however that such cooperation shall not materially interfere with Purchaser’s conduct of its business or with Purchaser’s employees’ performance of their duties to Purchaser.
(f) Following the earlier of the Closing Closing, Seller shall, and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees shall instruct its employees to, and to cause the Company Subsidiaries toat Purchaser’s request, subject to applicable Law and Section 7.02(a) cooperate with Purchaser as may be reasonably required (i) reasonably assist in connection with the investigation and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration defense of any suit, claim, action, proceeding or investigation set forth on Section 3.14(a) of the Company Seller Disclosure Schedule (it being understood and the Company Subsidiaries with Parent that each such suit, claim, action, proceeding and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration planinvestigation is an Excluded Liability), (ii) provide reasonable access in order to key personnel identified by Parent respond to facilitate Parent’s efforts inquiries or requests from Governmental Entities with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration conduct of the CompanyBusiness during the period prior to Closing; provided, however, that such cooperation shall not materially interfere with Seller’s existing businessesconduct of its business or with Seller’s employees’ performance of their duties to Seller.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its Subsidiaries and their authorized representatives to have reasonable access during normal business hours, upon reasonable advance noticeprior notice to Seller, during the period prior to the Effective TimeConveyed Assets, to all their respective propertiesthe real property that is the subject of the Sublease or the Bothell Facility Lease and to Seller’s and Seller Sub’s personnel, the Assumed Contracts and the Tax returns and the books and records and, during such periodof Seller and Seller Sub to the extent relating to the Conveyed Assets, the Company shallAssumed Liabilities or the Business (including historical performance data, but excluding personnel records to the extent prohibited by law or, after the written list specifying the Designated Employees is delivered pursuant to Section 5.8(a), with respect to non-Designated Employees), and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information in Seller’s or Seller Sub’s possession concerning its businessthe Conveyed Assets, properties and personnel the Assumed Liabilities or the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to unreasonably interfere with the operation of the Business. Notwithstanding the foregoing, Seller need not disclose to Purchaser any information: (i) relating to pricing or make other matters that are highly sensitive if (A) providing such disclosureportions of documents or information, to in the extent it determines, after consultation with outside opinion of Seller’s counsel, that might reasonably result in antitrust difficulties for Seller and (B) Seller designates such disclosure information as “outside counsel and retained experts only” and discloses such information to Purchaser’s outside counsel and retained experts or access would (aii) violate the terms of any which Seller is prohibited from disclosing by applicable Law or by a confidentiality agreement or other Contract with a third party (provided that if, in the Company shall use its case of a confidentiality agreement, Seller has used commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); . If any material is withheld by Seller pursuant to the immediately preceding sentence, Seller shall inform Purchaser as to the general nature of what is being withheld. Seller may redact such portions of its books and records that do not relate to the Conveyed Assets, the Assumed Liabilities and the Business.
(b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts Information disclosed to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent Purchaser pursuant to this Section 7.02 to Agreement (including in the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 Seller Disclosure Letter) shall be subject to held as Evaluation Material (as defined in the confidentiality agreementConfidentiality Agreement, dated as of June 21February 4, 2019 2002, by and between Parent Seller and the Company Berlex Laboratories, Inc. (the “Confidentiality Agreement”).
) and shall be subject to the Confidentiality Agreement and Purchaser, in accordance therewith, shall cause its Representatives (bas defined in the Confidentiality Agreement) Without limiting to treat as Evaluation Material all of the generality of Section 7.02(a)information provided by Seller pursuant to this Agreement; provided, during the period from the date of that Purchaser and its Representatives may use such information for any purpose contemplated by this Agreement or the Related Instruments (i.e., Purchaser is not limited to using such information solely for purposes of determining whether or not to enter into this Agreement). Effective upon the Closing, the Confidentiality Agreement shall terminate only with respect to the earlier use and maintenance of the Closing and the date, if any, on which the Agreement is validly terminated pursuant Evaluation Material (other than with respect to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and information deemed Evaluation Material under Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration 4.1 of the Company and the Company Subsidiaries with Parent and its Subsidiaries (includingIntellectual Property License Agreement). Effective upon Closing, at the upon written request of Parent Purchaser, from time to time, reasonably assisting Seller shall (at Purchaser’s cost and cooperating expense) use reasonable efforts to enforce Seller’s rights with Parent respect to the use and maintenance of the Evaluation Material relating to the Business under all other confidentiality agreements between Seller and any potential purchaser of the Business that were entered into in contemplation of the sale of the Business. Seller shall not waive or release its rights under such confidentiality agreements with respect to the use and maintenance of such Evaluation Material with respect to the Business.
(c) Following the Closing, Seller shall implement procedures to keep confidential (including from Amgen and its Subsidiaries in Subsidiaries), and cause its Affiliates and its and their officers, directors and employees to keep confidential, all information relating to the planning Business, except as required by Law; provided, however, that neither Seller nor its Affiliates nor their officers, directors and development employees shall be required to implement procedures with respect to maintaining such information confidential which are more stringent than the procedures Seller (or its successors) has generally adopted with respect to maintaining its own information confidential; provided, further, that the provisions of this Section 5.2(c) shall not apply to information which is or becomes generally available to the public other than as a result of a post-Closing integration plan)disclosure by Seller or its Affiliates or its or their officers, directors or employees. Seller shall not, and shall cause its Affiliates and its and their officers, directors or employees not to, disseminate any such information other than to those employees of Seller who have a business need to have access to such information (i) in connection with the preparation of Seller’s accounting records, (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts in connection with respect to the post-Closing retention preparation of such key personnel and any Tax Returns or with any Tax audits, (iii) provide Parent in connection with reasonable periodic updates on activities any suit, claim, action, proceeding or investigation relating to the integration Conveyed Assets, the Assumed Liabilities or the Business or (iv) in connection with any required regulatory filing relating to LEUKINE; provided that Seller shall not, and shall cause its Affiliates and its and their officers, directors and employees not to, transmit any information relating to pricing or discounting by Purchaser to Seller’s or its Affiliates’ marketing, sales or customer contracting employees for any reason.
(d) Following the Closing, for so long as such information is retained by Purchaser (which shall be for a period of at least eight (8) years), Purchaser shall permit Seller and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Purchaser, to the Companybooks and records included in the Conveyed Assets and, subject to the second proviso of Section 5.2(f), the employees of Purchaser or its Subsidiaries, to the extent that such access may reasonably be required: (i) in connection with the preparation of Seller’s existing businessesaccounting records or with any audits, (ii) in connection with the preparation of any Tax Returns or with any tax audits, (iii) in connection with any suit, claim, action, proceeding or investigation relating to the Conveyed Assets, the Assumed Liabilities or the Business, or (iv) in connection with any required regulatory filing relating to LEUKINE; provided that Seller shall reimburse Purchaser promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Purchaser in connection with any such request. Notwithstanding the foregoing, Purchaser need not disclose to Seller any information: (i) relating to pricing or other matters that are highly sensitive if (A) providing such portions of documents or information, in the opinion of Purchaser’s counsel, might reasonably result in antitrust difficulties for Purchaser and (B) Purchaser designates such information as “outside counsel and retained experts only” and discloses such information to Seller’s outside counsel and retained experts or (ii) which Purchaser is prohibited from disclosing by applicable Law or by a confidentiality agreement with a third party if, in the case of a confidentiality agreement, Purchaser has used commercially reasonable efforts to obtain the consent of such third party to such disclosure. If any material is withheld by Purchaser pursuant to the immediately preceding sentence, Purchaser shall inform Seller as to the general nature of what is being withheld.
(e) Following the Closing, for so long as such information is retained by Seller (which shall be for a period of at least eight (8) years), Seller shall permit Purchaser and its authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Seller, to the books, records and, subject to the second proviso of Section 5.2(g), personnel to the extent relating to the Conveyed Assets, the Assumed Liabilities or the Business, to the extent such access may reasonably be required: (i) in connection with the preparation of Purchaser’s accounting records or with any audits, (ii) in connection with the preparation of any Tax Returns or with any tax audits, (iii) in connection with any suit, claim, action, proceeding or investigation relating to the Conveyed Assets, the Assumed Liabilities or the Business or (iv) in connection with any required regulatory filing relating to the Conveyed Assets, the Assumed Liabilities or the Business; provided, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Seller in connection with any such request. Notwithstanding the foregoing, Seller need not disclose to Purchaser any information: (i) relating to pricing or other matters that are highly sensitive if (A) providing such portions of documents or information, in the opinion of Seller’s counsel, might reasonably result in antitrust difficulties for Seller and
Appears in 1 contract
Samples: Asset Purchase Agreement (Amgen Inc)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable LawWithout limiting the provisions of Section 5.3(b), the Company shall, and shall cause each Company Subsidiary to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective Time, to all their respective properties, books and records and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other information concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company Seller shall use its commercially reasonable efforts to provide to Buyer within thirty (30) days after the date of this Agreement, copies of (i) the IMBs, (ii) the Real Property Leases and (iii) the designs and as-built drawings (if and to the extent available), in each case, relating to the Designated Towers or the Pool Towers; provided that (i) Seller’s failure to provide the foregoing (whether before or after such period) shall not (x) constitute a breach by Seller of this Agreement, (y) constitute a basis on which Buyer Parent or Buyer may claim that any of the conditions to their respective obligations to consummate the Closing set forth in Section 6.3 are not satisfied or (z) be taken or deemed to mean that Seller is in breach of (A) any of the Specific Tower Representations with respect to any Designated Tower for which the foregoing is not provided or (B) any other representation, warranty, covenant or agreement set forth in this Agreement; provided that, subject to Seller’s cure rights set forth in Section 5.9 and Section 5.10, Seller’s failure to provide to Buyer a copy of an IMB in respect of a Designated Tower on or prior to the Closing shall be prima facie (but not conclusive) evidence that Seller was in breach of the Specific Tower Representation set forth in Section 3.6(b) with respect to that Designated Tower as of the Closing. If Seller has not provided to Buyer as-built drawings with respect to any of the Designated Towers or the Pool Towers prior to the expiry of such period, Buyer or its Representatives shall be entitled (upon reasonable prior notice to Seller and, unless otherwise agreed in writing by Seller, accompanied by one of Seller’s Representatives) to access the sites on which such Designated Towers or such Pool Towers are located (subject to the terms of access under the applicable Real Property Leases) solely to prepare, at Buyer’s cost, as-built plans for such Designated Towers; provided, that any such access or make shall be conducted in such disclosure in a manner that does as not violate Lawto interfere with the operation of Seller’s businesses (whether relating to the Designated Towers or otherwise). Notwithstanding anything contained in this Agreement to the contraryforegoing, the Company Seller (i) shall not be required to provide disclose to Buyer or its Representatives any access information that would violate applicable Law or make result in a breach of attorney-client or similar privilege and (ii) shall be entitled to redact (x) any information the disclosure of which would violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to Parent pursuant to this Section 7.02 which Seller is a party and (y) such portions of such books and records that do not directly relate to the extent such access Purchased Assets, the Pool Tower Assets or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)Assumed Liabilities relating thereto.
(b) Without limiting the generality provisions of Section 7.02(a5.3(a), during the period from the date hereof until the Closing (with respect to the Purchased Assets and the Pool Tower Assets) and from the Tower Swap Exercise Date until the Tower Swap Date (with respect to the Swapped-in Towers and the Swapped-in Tower Assets), Seller shall permit Buyer and its Representatives, upon reasonable prior notice from Buyer to Seller, to have reasonable access during normal business hours to (i) the Books and Records with respect thereto and (ii) subject to clause (y) of the proviso below, the other books and records of Seller to the extent directly relating to the Purchased Assets and the Pool Tower Assets; provided, that any such access shall be conducted in such a manner as not to interfere with the operation of Seller’s businesses (whether relating to the Designated Towers, the Pool Towers, the Swapped-in Towers or otherwise). Notwithstanding the foregoing, Seller (x) shall not be required to disclose to Buyer or its Representatives any information that would violate applicable Law or result in a breach of attorney-client or similar privilege and (y) shall be entitled to redact (A) any information the disclosure of which would violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to which Seller is a party and (B) such portions of such books and records that do not directly relate to the Purchased Assets, the Pool Tower Assets or the Assumed Liabilities relating thereto.
(c) From the date hereof until the Closing, each of Buyer Parent and Buyer shall permit Seller and its Representatives, upon reasonable prior notice from Seller to Buyer Parent or Buyer, to have reasonable access during normal business hours to its and its Subsidiaries’ books and records; provided, that any such access shall be conducted in such a manner as not to interfere with the operation of Buyer Parent’s or Buyer’s business. Notwithstanding the foregoing, each of Buyer Parent, Buyer and their respective Subsidiaries
(i) shall not be required to disclose to Seller any information that would violate applicable Law or result in a breach of attorney-client or similar privilege and (ii) shall be entitled to redact (x) any information (A) the disclosure of which would violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to which Buyer Parent, Buyer or any such Subsidiary is a party or (B) that is commercially sensitive information contained in a Contract or arrangement between Buyer Parent, Buyer or any Subsidiary on the one hand, and a Competitor on the other hand. From the date hereof until the Closing, promptly and otherwise within five (5) business days after Seller’s request therefor and in any event prior to the Closing, provide to Seller such updates as to the status of Buyer Parent’s and Buyer’s financing for the Transactions (but without any obligation on Buyer Parent or Buyer to provide to Seller copies of any financing documents between Buyer Parent, Buyer and their respective lenders with respect thereto).
(d) All information disclosed to a Party pursuant to this Agreement (including this Agreement itself, all information provided by Seller pursuant to Section 5.3(a) and all information disclosed following the Closing) has been and shall be provided to and held by it as Confidential Information (as defined in the Confidentiality Agreement) and shall be subject to the earlier Confidentiality Agreement; provided that, with effect from the Closing (with respect to the Purchased Assets) and the Tower Swap Closing (with respect to the Swapped-in Tower Assets), all information included in the Books and Records relating to the Purchased Assets or the Swapped-in Tower Assets, as applicable, shall become the property of Buyer and shall be treated for the purposes of the Confidentiality Agreement as “Confidential Information” disclosed by Buyer (it being understood that for the purposes of clause (b) of the second paragraph of the Confidentiality Agreement, Seller shall be entitled to use such Confidential Information for any of the purposes set forth in Section 5.3(e) hereof); and provided, further, that with effect from the Tower Return Closing (with respect to the Returned Tower Assets) and the Tower Swap Closing (with respect of the Swapped-out Tower Assets) all information included in the Books and Records relating to the applicable Returned Tower Assets or Swapped-out Tower Assets, as applicable, shall become the property of Seller and shall be treated for the purposes of the Transaction Documents as Confidential Information disclosed by Seller. Subject to the foregoing, each Party shall, and shall cause its Representatives to, (i) treat as Confidential Information all of the information provided to it, its Affiliates and its Representatives pursuant to this Agreement and (ii) not disclose or use such information except as expressly permitted by the Confidentiality Agreement. The Parties agree that the Confidentiality Agreement is hereby amended to survive the Closing and continue in full force and effect for a period of two (2) years thereafter. Buyer undertakes to comply, and Buyer Parent undertakes to procure that Buyer complies, with the dateterms of the Confidentiality Agreement as if it were an original party thereto on and from the date thereof.
(e) Following the Closing, if anyfor so long as such information is retained by Buyer Parent or Buyer (which shall be for a period of at least ten (10) years following the Closing or, on which in the Agreement is validly terminated pursuant case of books, records and personnel relating to the Swapped-in Tower Assets, a period of ten (10) years following the Tower Swap Closing), each of Buyer Parent and in accordance with Article IXBuyer shall permit (and shall cause its respective Subsidiaries to permit) Seller and its Representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Buyer Parent or Buyer, to the books, records and personnel relating to the Purchased Assets, the Company agrees toSwapped-in Tower Assets and Assumed Liabilities relating thereto (including the Books and Records relating thereto), to the extent that such access may be reasonably required in connection with (i) any breach of the Specific Tower Representations or actions taken or proposed to by taken by Seller or its Representatives to cure any such breach or the effect thereof, (ii) the preparation of Seller’s or its Affiliates’ accounting records or financial statements or in connection with any audits of Seller or its Affiliates, (iii) any Claim relating to the Purchased Assets or the Swapped-in Tower Assets, (iv) any regulatory filing or matter, (v) any Designated Tower which may become a Returned Tower under the provisions of Section 5.10 or a Swapped-out Tower under the provisions of Section 5.11, in each case, for the purposes of any Seller’s Audit Determination with respect thereto or (vi) any other valid legal or business purpose of Seller. Each of Buyer Parent and Buyer shall, and to shall cause the Company its respective Subsidiaries to, subject maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (x) neither Buyer Parent nor Buyer nor their respective Subsidiaries need disclose to Seller any information which would violate applicable Law or result in a breach of attorney-client or similar privilege, and Section 7.02(a(y) each of Buyer Parent, Buyer and any such Subsidiary may redact (A) any information the disclosure of which would violate any confidentiality or nondisclosure agreement or similar agreement or arrangement to which Buyer Parent or Buyer is a party and (B) such portions of such books and records that do not directly relate to the Purchased Assets, the Swapped-in Tower Assets or the Assumed Liabilities relating thereto.
(f) Following the Closing, in the case of any books and records of Seller or Contracts that relate to the Purchased Assets or the Swapped-in Tower Assets but do not constitute Books and Records with respect to the Purchased Assets or the Swapped-in Tower Assets, as applicable, Seller shall (x) retain such books and records or Contracts (including any originals of such Contracts to the extent such originals are in Seller’s possession as of the Closing) for a period of not less than the term of the applicable Assumed Contract and (y) upon Seller’s receipt of reasonable prior notice, make such originals available to Buyer in connection with the investigation and defense of any third party Claim relating to the Purchased Assets or the Swapped-in Tower Assets, as applicable, that is brought against Buyer or any of its Affiliates at any time after the Closing or the Tower Swap Closing, as applicable. Notwithstanding the foregoing, Seller (i) reasonably assist shall not be required to disclose to Buyer or its Representatives any information that would violate applicable Law or result in a breach of attorney-client or similar privilege and reasonably cooperate with (ii) shall be entitled to redact (x) such portions of such books and records or Contracts that do not directly relate to the Purchased Assets.
(g) Each of Buyer Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company Buyer shall, and the Company Subsidiaries with Parent shall instruct their respective Representatives and its Subsidiaries (includingtheir Subsidiaries’ Representatives to, at the request of Parent from Seller, cooperate with Seller as may be reasonably required in connection with the investigation and defense of any third party Claim relating to the Purchased Assets or the Swapped-in Tower Assets that is brought against Seller or any of its Affiliates at any time after the Closing (in the case of the Purchased Assets) or the Tower Swap Closing (in the case of the Swapped-in Tower Assets). Except to timethe extent set forth in Article VIII, reasonably assisting and cooperating with Seller shall reimburse Buyer Parent and Buyer for their respective reasonable out-of-pocket expenses incurred in connection with such cooperation.
(h) Seller shall, and shall instruct its Subsidiaries Representatives and its Subsidiaries’ Representatives to, at the request of Buyer Parent or Buyer, cooperate with Buyer Parent or Buyer as may be reasonably required in connection with the investigation and defense of any third party Claim relating to the Returned Tower Assets or the Swapped-out Tower Assets that is brought against Buyer Parent, Buyer or any of their respective Affiliates at any time after the Tower Return Closing (in the planning case of the Returned Tower Assets) or the Tower Swap Closing (in the case of the Swapped-out Tower Assets). Except to the extent set forth in Article VIII, Buyer Parent and development Buyer shall reimburse Seller for its reasonable out-of-pocket expenses incurred in connection with such cooperation.
(i) Seller shall have the right to retain one copy of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts the Books and Records with respect to the postPurchased Assets and/or the Swapped-Closing retention in Tower Assets for any valid legal or business purpose of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating Seller. Buyer shall have the right to the integration retain one copy of the Company’s existing businessesBooks and Records with respect to any Returned Tower Assets and/or any Swapped-out Tower Assets for any valid legal or business purpose of Buyer.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company shall, and shall cause each Company Subsidiary to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective TimeInterim Period, to all their respective employees, properties, books and records records, Contracts, information technology systems and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other information available to it concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it reasonably determines, after consultation with outside legal counsel, that such disclosure or access would would: (ai) violate the terms of any confidentiality agreement or of other Contract with a third party (provided provided, that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (bii) result in the loss of any attorney-client privilege or protection for work product prepared for or in anticipation of litigation (“Work Product Protection”) (provided that the Company shall reasonably cooperate with Parent and use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilegeprivilege or Work Product Protection); or (ciii) violate any Law (provided that the Company shall reasonably cooperate with Parent and use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained ; provided, further, in this Agreement to the contrary, case of each of the foregoing clauses (i) through (iii) that the Company shall not be required to provide any access or make any disclosure has given notice to Parent pursuant to this Section 7.02 to of the extent fact that it is not providing such access or disclosure, including a description of the general nature of the information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse partiesbeing withheld. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreementMutual Nondisclosure Agreement, dated as of June 21September 22, 2019 2018 between Parent Fortress Investment Group LLC and the Company (the “Confidentiality Agreement”)).
(b) Without limiting the generality of Section 7.02(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IXInterim Period, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the post-Closing integration of the Company’s existing businesses; provided, however, that such requests for access and cooperation from Parent shall not unreasonably interfere with the operation of the Company’s business or impede or delay the consummation of the transactions contemplated hereby.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Applicable Law, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective TimeClosing Date (or the earlier termination of this Agreement in accordance with its terms), (i) afford Parent and Parent’s Representatives reasonable access, upon reasonable advance notice (and in any event not less than twenty-four (24) hours’ notice), and during normal business hours, to all of their respective properties, books books, records, Contracts, officers and records and, during such period, the Company shall, employees and shall cause each Company Subsidiary to, (ii) furnish reasonably as promptly as practicable to Parent all such other information concerning its business, properties and personnel as Parent may be reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated requested by this Agreement (Parent; provided, however, that in each casecase of clauses (i) and (ii), Parent and its Representatives shall conduct any such activities in a manner so as to not unreasonably interfere in any material respect with the normal business operations of the Company or its Subsidiaries and Parent and Parent’s Representatives shall not be permitted to conduct any Company Subsidiary); providedinvasive environmental assessment. Notwithstanding the foregoing, however, that the Company shall not be required to permit provide such access or make furnish such disclosure, information if the Company reasonably determines that doing so could reasonably be likely to the extent it determines, after consultation with outside counsel, that such disclosure or access would (ai) violate the terms of any confidentiality agreement or other Contract with or obligation of confidentiality owed to a third party party, (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (bii) result in the waiver or loss of any attorney-client or other legal privilege or (provided that iii) violate any Applicable Law or Order or expose the Company shall use its commercially reasonable efforts to allow an unreasonable risk of liability for such disclosure of sensitive or personal information. If the Company does not provide access or disclosure in a manner that does not result in information pursuant to the immediately preceding sentence, the Company shall, to the extent possible without violating any agreement or Applicable Law or Order or risking a loss of attorney-client privilege); or (c) violate any Law (provided that , inform Parent as to the Company general nature of what is being withheld and shall use its commercially reasonable best efforts to provide enable such access information to be furnished or make such disclosure in a manner that does not violate Law)made available to Parent or its Representatives without so jeopardizing privilege or protection, incurring liability, or contravening applicable Law or any Contract or obligation. Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 7.02 6.02(a) to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are or could reasonably expected to become adverse parties. The Company may, as it deems advisable and necessary, designate any competitively sensitive material to be provided to Parent under this Section 6.02 (a) as “Outside Counsel Only Material.” Such materials and information contained therein shall be given only to the outside counsel of the recipient pursuant to the terms of an agreement with respect thereto on terms that are reasonably acceptable to the Company and pursuant to which such information will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the Company or its legal counsel. All requests for information exchanged made pursuant to this Section 7.02 6.02(a) shall be directed to such Person(s) as are designated by the Company. All information made available pursuant to this Section 6.02(a), including all information and/or discussions resulting from any access provided pursuant to this Section 6.02(a), shall be subject to the confidentiality agreement, dated as of June 21September 10, 2019 2018, between Parent and the Company (the “Confidentiality Agreement”), which shall survive the termination of this Agreement and continue in full force and effect in accordance with the terms set forth therein.
(b) Without limiting the generality of Section 7.02(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, Provided that the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (includingShareholders Approval has been obtained, at the request of Parent, the Company shall (and shall cause its Subsidiaries to) cooperate with the Parent Parties and shall use (and shall cause its Subsidiaries to use) reasonable best efforts to obtain such approvals, consents, registrations, waivers, Permits (including any Permit transfer, amendment or reissuance), authorizations, Orders and other confirmations from time any Governmental Entity or third party with respect to any Permits or Contracts that are identified by the Parent Parties as having any right in favor of such Governmental Entity or third party that would be triggered by the consummation of the transactions contemplated by this Agreement, including the Merger. Notwithstanding any provision of this Agreement or the Confidentiality Agreement to the contrary, from and after such time, the Parent Parties may request that the Company contact any relevant third parties in connection with the foregoing and the Company and the Parent Parties shall reasonably assisting cooperate with respect to any such communication; provided, however, that, in no event shall any Parent Party contact any such third parties without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the parties acknowledge and cooperating with Parent and its Subsidiaries in agree that (i) obtaining any such approval, consent, registration, waiver, Permit, authorization, Order or other confirmation, other than the planning and development of a post-Closing integration planRequired Antitrust Approvals as contemplated by Section 7.01(b), shall not be condition precedent to the obligations of the parties to consummate the Merger and the other transactions contemplated by this Agreement and (ii) provide reasonable access in no event shall the Company or any of its Subsidiaries be obligated to key personnel identified by Parent pay any fee to facilitate Parent’s efforts with respect to the post-Closing retention of obtain any such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s existing businessesapproval, consent, registration, waiver, Permit, authorization, Order or confirmation.
Appears in 1 contract
Samples: Merger Agreement (Belmond Ltd.)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance noticeprior notice to Seller, during to Seller's properties (including the period prior Equipment), books, records, contracts, commitments and personnel relating to the Effective Time, to all their respective properties, books and records and, during such period, Conveyed Assets or the Company shallAssumed Liabilities, and Seller shall cause each Company Subsidiary to, use reasonable best efforts to furnish reasonably promptly to Parent all other Purchaser such information concerning its business, properties and personnel the Conveyed Assets or the Assumed Liabilities as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to unreasonably interfere with the operation of Seller's business. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information that would violate applicable Law or make any confidentiality agreement or similar agreement or arrangement to which Seller is a party and (ii) Seller may redact such disclosureportions of its books and records that do not directly relate to the Conveyed Assets or the Assumed Liabilities. Seller may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided to Purchaser under this Section 5.2(a) as available to "outside counsel and retained experts only."
(b) Following the Closing, for so long as such information is retained by Purchaser (which shall be for no less than the period of time that Purchaser customarily would retain similar information), Purchaser shall permit Seller and their respective authorized representatives to have reasonable access during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the Conveyed Assets or the Assumed Liabilities, to the extent it determinesthat such access may be reasonably required (i) in connection with the preparation of Seller's accounting records or with any audits, after consultation (ii) in connection with outside counselthe preparation of Seller's Tax Returns or with any Tax audits, (iii) in connection with any suit, claim (including warranty claims in respect of any Equipment), action, proceeding or investigation relating thereto or (iv) in connection with any regulatory filing or matter; provided, that any such disclosure access shall be conducted in such a manner as not to unreasonably interfere with Purchaser's business, and provided, further, that Seller shall reimburse Purchaser promptly for all reasonable out of pocket costs and expenses incurred by Purchaser in connection with any such request. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information that would violate applicable Law or access would (a) violate the terms of any confidentiality agreement or other Contract with similar agreement or arrangement to which Purchaser is a third party and (ii) Purchaser may redact such portions of its books and records that do not directly relate to the Conveyed Assets or the Assumed Liabilities. Purchaser may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party Seller under this Section 5.2(b) as available to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or "outside counsel and retained experts only."
(c) violate any Law (provided that the Company shall use its commercially reasonable efforts Seller agrees to provide, or to provide access to, accounting work papers and to provide such access management representation letters to Purchaser and Purchaser's accountants as Purchaser or make Purchaser's accountants may reasonably request, and to otherwise reasonably cooperate with Purchaser and Purchaser's accountants, in connection with the preparation of any audited financial statements that may be required following the Closing; provided, that that Purchaser shall reimburse Seller promptly for all reasonable out of pocket costs and expenses incurred by Seller in connection with any such disclosure cooperation.
(d) Purchaser shall, and shall instruct its employees to, at Seller's request, cooperate with Seller as may be reasonably required in a manner that does not violate Lawconnection with the investigation and defense of any suit, claim (including warranty claims in respect of any Equipment). Notwithstanding anything contained in this Agreement , action, proceeding or investigation relating to the contraryConveyed Assets that is brought against Seller or any of their respective Affiliates at any time after the Closing; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable out of pocket costs and expenses incurred by Purchaser in connection with any such request.
(e) Seller shall, and shall instruct their respective employees to, at Purchaser's request, cooperate with Purchaser as may be reasonably required in connection with the Company shall not be required to provide investigation and defense of any access suit, claim (including warranty claims in respect of any Equipment), action, proceeding or make any disclosure to Parent pursuant to this Section 7.02 investigation relating to the extent such access or information Conveyed Assets that is reasonably pertinent to a litigation where the Company brought against Purchaser or any of its AffiliatesAffiliates at any time after the Closing; provided, on the one handhowever, that Purchaser shall reimburse Seller promptly for all reasonable out of pocket costs and Parent or expenses incurred by Seller in connection with any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)such request.
(b) Without limiting the generality of Section 7.02(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s existing businesses.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company Each of RJR and B&W shall, and shall cause each Company Subsidiary of its respective subsidiaries to, afford to Parent the other party and to the Representatives officers, employees, accountants, counsel, financial advisors and other representatives of Parent such other party reasonable access during normal business hours, upon reasonable advance notice, hours during the period prior to the Effective Time, Time to all their respective properties, books books, Contracts, commitments, personnel and records records, and, during such period, the Company each of RJR and B&W shall, and shall cause each Company Subsidiary of its respective subsidiaries to, furnish reasonably promptly to Parent the other party (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (ii) all other information concerning its business, properties and personnel as Parent such other party may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company such access (A) shall not be required to permit such access or make such disclosure, to unreasonably disrupt the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms normal operations of any confidentiality agreement or other Contract with party, (B) shall be subject to any legal restrictions on a third party party's ability to provide any information and (provided that the Company iii) shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) not result in a waiver of the loss of any attorney-client privilege (provided that or the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss protection of attorneyattorney work-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse partiesproduct. All information exchanged pursuant to this Section 7.02 6.02 shall be subject to the confidentiality agreement, agreement dated as of June 2124, 2019 2003, between Parent RJR and B&W U.S. Holdings, Inc. ("B&W U.S. Holdings"), the Company indirect corporate parent of B&W (the “"Confidentiality Agreement”").
(b) Without limiting the generality of Section 7.02(a), during the period from From the date of this Agreement to hereof through the earlier of the Closing and the dateEffective Time, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent B&W shall permit RJR and its officers and representatives to meet with the officers and employees of B&W and the B&W Subsidiaries to facilitate planning responsible for the post-Closing integration preparation of the Company B&W Audited Historical Financial Statements and the Company Subsidiaries with Parent B&W Opco Financial Statements, the internal controls of the B&W Business and its Subsidiaries (including, at the request disclosure 77 controls and procedures of Parent from time to time, reasonably assisting the B&W Business and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access RJR shall permit B&W and its officers and representatives to key personnel identified by Parent to facilitate Parent’s efforts meet with respect to the post-Closing retention officers and employees of such key personnel RJR and (iii) provide Parent with reasonable periodic updates on activities relating to the integration RJR Subsidiaries responsible for the preparation of the Company’s existing businessesRJR SEC Filings, the internal controls of RJR and the disclosure controls and procedures of the RJR, in each case to discuss such matters as are reasonably necessary or appropriate for Xxxxxxxx American and its officers to satisfy their obligations under Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act, and any rules and regulations promulgated thereunder or relating thereto and each party will require its officers and employees responsible for such matters to provide the other party and its officers such information as may be reasonably requested in complying with such obligations.
Appears in 1 contract
Samples: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance notice, during the period prior notice to the Effective TimeSeller, to all their respective properties, Seller's and Home Link's books and records andto the extent directly relating to the Conveyed Assets, during such periodHome Link's assets or liabilities, the Company shallAssumed Liabilities and the Business (excluding personnel and medical records that Seller is prohibited from disclosing pursuant to any Law or agreement to which Seller is a party), and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information in Seller's or Home Link's possession concerning its businessthe Conveyed Assets, properties Home Link's assets or liabilities, the Assumed Liabilities and personnel the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access or make shall be conducted in such disclosurea manner as not to materially interfere with the operation of the Business; and provided, to the extent it determines, after consultation with outside counselfurther, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Seller in complying with any such disclosure request by or access on behalf of Purchaser other than those expenses that Seller would otherwise be reasonably expected to incur to fulfill its obligations hereunder, so long as Seller shall have obtained Purchaser's written consent prior to incurring any such cost or expense for which it seeks reimbursement. Notwithstanding the foregoing, (ai) Seller need not disclose to Purchaser any information which would violate applicable Law, result in a breach of attorney client privilege or similar privilege with respect to any litigation to which Seller is a party (except with respect to matters described on Section 2.2(a)(vi) of the Seller Disclosure Schedule), which would violate the terms of any confidentiality agreement or other Contract with a third party similar provision related to any Excluded Assets or is proprietary in nature and (provided ii) Seller may redact such portions of its books and records that do not directly relate to the Company shall use its commercially reasonable efforts to obtain Conveyed Assets, the required consent of such third party to such access or disclosure); Assumed Liabilities and the Business.
(b) result From the date of this Agreement until the Closing, information disclosed to Purchaser pursuant to this Agreement (including in the loss Seller Disclosure Schedule) shall be held as Evaluation Material (as defined in the Confidentiality Agreement, dated as of April 20, 2002, by and between Seller and Purchaser (the "Confidentiality Agreement")) and shall be subject to the Confidentiality Agreement; and Purchaser, in accordance therewith, shall cause its Representatives (as defined in the Confidentiality Agreement) to treat as Evaluation Material all of the information provided by Seller pursuant to this Agreement and not to use such information except in connection with the transactions contemplated hereby and otherwise in accordance with the Confidentiality Agreement. The Confidentiality Agreement shall terminate upon the Closing. Notwithstanding anything to the contrary in this Section 5.2(b) or in the Confidentiality Agreement, nothing shall prohibit the Purchaser from disclosing any attorney-client privilege information or material to any of Spectrum Equity Investors III, L.P., SEI III Entrepreneurs' Fund, L.P., SEI III Investment Managers' Fund, L.P., Spectrum Equity Investors IV, L.P., Spectrum Equity Investors Parallel IV, L.P., or Spectrum IV Investment Managers' Fund, L.P. (provided the "Spectrum Entities") nor prohibit any such Spectrum Entity from making any such disclosure to any of its partners; provided, that such information or material is treated as confidential information pursuant to the Company terms of customary confidentiality arrangements between the Spectrum Entities and such partners, which such arrangements are in place on the date hereof and will be on the Closing Date.
(c) Following the Closing, for so long as such information is retained by Purchaser (which shall use be for a period of at least six years), Purchaser shall permit Seller and its commercially authorized representatives to have reasonable efforts access and duplicating rights during normal business hours, upon reasonable prior notice to allow for Purchaser, to the books, records and personnel relating to the Conveyed Assets, Assumed Liabilities and the Business, to the extent that such access may be reasonably required (i) in connection with the preparation of Seller's accounting records or disclosure with any audits, (ii) in a manner connection with any suit, claim, action, proceeding or investigation relating to the Business, (iii) in connection with any regulatory filing or matter, or (iv) in connection with any other valid legal or business purpose of Seller (including, without limitation, pursuant to Section 5.17 hereof); provided, that does Seller shall reimburse Purchaser promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Purchaser in connection with any such request, so long as Purchaser shall have obtained Seller's written consent prior to incurring any such cost or expense for which it seeks reimbursement. Purchaser shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information which would violate applicable Law, result in a loss breach of attorney-attorney client privilege); privilege on similar privilege with respect to any litigation to which Purchaser is a party, or is proprietary in nature, and (cii) violate any Law (provided Purchaser may redact such books and records that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does do not violate Law). Notwithstanding anything contained in this Agreement directly relate to the contraryConveyed Assets, Assumed Liabilities or the Company Business.
(d) Following the Closing, for so long as such information is retained by Seller (which shall not be required for a period of at least six years), Seller shall permit Purchaser and its authorized representatives to provide any have reasonable access or make any disclosure during normal business hours, upon reasonable prior notice to Parent pursuant Seller, to this Section 7.02 the Retained Information to the extent such access may be reasonably required (i) in connection with the preparation of Purchaser's accounting records or information is reasonably pertinent to a litigation where the Company with any audits, (ii) in connection with any suit, claim, action, proceeding or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject investigation relating to the Business, (iii) in connection with any regulatory filing or matter, or (iv) in connection with any other valid legal or business purpose of Purchaser; provided, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Seller in connection with any such request. Seller shall maintain such books and records in an easily accessible format and at accessible locations. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information which would violate applicable Law, result in a breach of attorney-client privilege or similar privilege, violate any confidentiality agreementor nondisclosure agreement or similar agreement or arrangement to which Seller is a party and (ii) Seller may redact such portions of the Retained Information that do not directly relate to the Conveyed Assets, dated as of June 21, 2019 between Parent and the Company (Assumed Liabilities or the “Confidentiality Agreement”)Business.
(be) Without limiting Following the generality Closing, Purchaser shall, and shall instruct its employees to, at Seller's request, cooperate with Seller as may be reasonably required in connection with the investigation and defense of Section 7.02(a)any suit, during claim, action, proceeding or investigation relating to the period from Business in existence as of the date of this Agreement or that is brought against Seller or any of its Affiliates at any time after the date of this Agreement; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Purchaser in connection with any such request; and provided, further, that such cooperation shall not materially interfere with Purchaser's conduct of its business or with Purchaser's employees' performance of their duties to Purchaser.
(f) Following the earlier of the Closing Closing, Seller shall, and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees shall instruct its employees to, and to cause the Company Subsidiaries toat Purchaser's request, subject to applicable Law and Section 7.02(a) cooperate with Purchaser as may be reasonably required (i) reasonably assist in connection with the investigation and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration defense of any suit, claim, action, proceeding or investigation set forth on Section 2.2 (a)(vi) of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan)Seller Disclosure Schedule, (ii) provide reasonable access in order to key personnel identified by Parent respond to facilitate Parent’s efforts inquiries or requests from Governmental Entities with respect to the postconduct of the Business during the period prior to Closing; provided, however, that Purchaser shall reimburse Seller promptly for all reasonable and necessary out-Closing retention of-pocket costs and expenses incurred by Seller in connection with any such request; and provided, further, that such cooperation shall not materially interfere with Seller's conduct of its business or with Seller's employees' performance of their duties to Seller.
(g) Seller will deliver to Purchaser within twenty (20) days after the close of each calendar month (i) a copy of Seller's internally generated monthly programming services report consistent with that set forth on Section 5.2(g) of the Seller Disclosure Schedule and a report of the number of connections and disconnects during such key personnel calendar month, (ii) Seller's monthly Convergys billing report for such calendar month, including an accounts receivable aging report and a report indicating monthly credits to subscriber accounts, and (iii) provide Parent Seller's monthly statements of profits and losses with reasonable periodic updates on activities relating respect to the integration Business.
(h) Prior to the Closing and in anticipation thereof, Purchaser and Seller shall use their best efforts to resolve all open issues in the Transition Services Agreement (including without limitation Annex A thereto) and shall each coordinate and consult with each other with respect to the delivery of services contemplated by the Company’s existing businessesTransition Services Agreement to facilitate the delivery thereof from and after the Closing Date in accordance with the terms set forth therein.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company shall, and shall cause each Company Subsidiary to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective TimeInterim Period, to all their respective employees, properties, books and records records, Contracts, information technology systems and, during such period, the Company shall, and shall cause each Company Subsidiary to, use commercially reasonable efforts to furnish reasonably promptly to Parent all other information available to it and prepared in the Ordinary Course of Business concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company SubsidiarySubsidiary and solely for purposes that are, in good faith, directly and actually related to, and explicitly necessary for, the consummation of the Merger or the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it reasonably determines, after consultation with outside legal counsel, that such disclosure or access would be reasonably likely to: (ai) violate the terms of any confidentiality agreement or of other Contract with a third party (provided provided, that the Company shall at Parent’s written request use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (bii) result in the loss of any attorney-client privilege or protection for work product prepared for or in anticipation of litigation (“Work Product Protection”) (provided that the Company shall reasonably cooperate with Parent and use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilegeprivilege or Work Product Protection); or (ciii) violate any Law (provided that the Company shall reasonably cooperate with Parent and use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained ; provided, further, in this Agreement to the contrary, case of each of the foregoing clauses (i) through (iii) that the Company shall not be required to provide any access or make any disclosure has given notice to Parent pursuant to this Section 7.02 to of the extent fact that it is not providing such access or disclosure, including a description of the general nature of the information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse partiesbeing withheld. All information exchanged pursuant to this Section 7.02 7.2 shall be subject to the confidentiality agreementMutual Nondisclosure Agreement, dated as of June 21October 20, 2019 2022 between Parent and the Company (the “Confidentiality Agreement”).
(b) Without limiting the generality of Section 7.02(a7.2(a), during the period from the date of this Agreement to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IXInterim Period, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a7.2(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), and (ii) provide reasonable access to key personnel identified mutually agreed by the Company and Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel personnel; provided, however, that such requests for access and (iii) provide cooperation from Parent shall not unreasonably interfere with reasonable periodic updates on activities relating to the integration operation of the Company’s existing businessesbusiness or impede or delay the consummation of the transactions contemplated hereby.
(c) The Company may satisfy its obligations set forth in this Section 7.2 by electronic means if physical access is not reasonably feasible or would not be permitted under applicable Law, including as a result of any COVID-19 Measures.
Appears in 1 contract
Samples: Merger Agreement (Volta Inc.)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, After the Company shall, date hereof and shall cause each Company Subsidiary to, afford to Parent and prior to the Representatives of Parent Closing, Seller shall permit Purchaser and its authorized representatives to have reasonable access during normal business hours, upon reasonable advance noticeprior notice to Seller, during the period prior to Seller’s properties, books, records, contracts, commitments and personnel relating to the Effective Time, to all their respective properties, books and records and, during such periodConveyed Assets, the Company shallAssumed Liabilities or the Business, and Seller shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other Purchaser such information concerning its businessthe Conveyed Assets, properties and personnel the Assumed Liabilities or the Business as Parent Purchaser may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary)request; provided, however, that the Company shall not be required to permit any such access shall be conducted in such a manner as not to materially interfere with the operation of Seller’s business. Notwithstanding the foregoing, (i) Seller need not disclose to Purchaser any information that would violate applicable Law, result in a breach of attorney-client privilege or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with similar agreement or arrangement to which Seller is a third party and (provided ii) Seller may redact such portions of its books and records that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does do not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement directly relate to the contraryConveyed Assets, the Company shall not be required to provide any access Assumed Liabilities or make any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 shall be subject to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)Business.
(b) Without limiting the generality of Purchaser will, and will cause its representatives to, hold any such information obtained pursuant to Section 7.02(a)5.2(a) in confidence, during the period from the date of this Agreement except to the earlier of the Closing and the date, if any, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) extent any such information (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development is or becomes publicly available other than as a result of a post-Closing integration planbreach of this Section 5.2(b), (ii) provide reasonable access is or becomes available to key personnel identified Purchaser on a non-confidential basis from a source other than Seller, provided that such source is not known to Purchaser to be bound by Parent a confidentiality agreement with Seller or otherwise prohibited from transmitting the information to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and Purchaser by a contractual, legal or fiduciary obligation, (iii) provide Parent with was in the possession of Purchaser prior to its being furnished to it by Seller, (iv) has been or is independently developed by Purchaser or (v) is required to be disclosed by Law or Governmental Entity.
(c) Following the Closing, for so long as such information is retained by Purchaser (which shall be for no less than the period of time that Purchaser customarily would retain similar information), Purchaser shall permit Seller and its authorized representatives to have reasonable periodic updates on activities access during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the integration Conveyed Assets, the Assumed Liabilities or the conduct of the CompanyBusiness by Seller, to the extent that such access may be reasonably required (i) in connection with the preparation of Seller’s existing businessesaccounting records or with any audits, (ii) in connection with the preparation of any Tax Returns or with any Tax audits, (iii) in connection with any suit, claim, action, proceeding or investigation relating to Seller’s conduct of the Business or (iv) in connection with any regulatory filing or matter; provided, that such access shall be conducted in such a manner as not to materially interfere with Purchaser’s business, and provided, further, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request. Notwithstanding the foregoing, (i) Purchaser need not disclose to Seller any information which would violate applicable Law, result in a breach of attorney-client privilege or violate any confidentiality agreement or similar agreement or arrangement to which Purchaser is a party and (ii) Purchaser may redact such portions of its books and records that do not directly relate to the Conveyed Assets, the Assumed Liabilities or the Business. Purchaser may, as it deems reasonably necessary or advisable, designate any competitively sensitive information provided to Seller under this Section 5.2(c) as available to “outside counsel and retained experts only.”
(d) Purchaser shall, and shall instruct its employees to, at Seller’s request, cooperate with Seller as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the Business that is brought against Seller or any of its Affiliates at any time after the Closing; provided, however, that Seller shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses incurred by Purchaser in connection with any such request.
(e) Seller shall, and shall instruct its employees to, at Purchaser’s request, cooperate with Purchaser as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the Business that is brought against Purchaser or any of its Affiliates at any time after the Closing; provided, however, that Purchaser shall reimburse Seller promptly for all reasonable out-of-pocket costs and expenses incurred by Seller in connection with any such request.
Appears in 1 contract
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company shall, and shall cause each Company Subsidiary to, afford to Parent and to the Representatives of Parent reasonable access during normal business hours, upon reasonable advance notice, during the period prior to the Effective Time, to all their respective properties, books and records and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other information concerning its business, properties and personnel as Parent may reasonably request for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company or any Company Subsidiary); provided, however, that the Company shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (ai) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to such access or disclosure); (bii) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (ciii) violate any applicable Law (provided that the Company shall use its commercially reasonable best efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 7.02 6.3 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to this Section 7.02 6.3 shall be subject to the confidentiality agreementMutual Non-Disclosure Agreement, dated as of June 2112, 2019 between Parent and the Company (the “"Confidentiality Agreement”").
(b) Without limiting the generality of Section 7.02(a6.3(a), during the period from the date of this Agreement to the earlier of the Closing and until the date, if any, on which the this Agreement is validly terminated pursuant to and in accordance with Article IXSection 8, the Company agrees to, and to cause the Company Subsidiaries to, subject to applicable Law and Section 7.02(a6.3(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s 's efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s 's existing businesses.
Appears in 1 contract
Samples: Merger Agreement (Counterpath Corp)
Access to Information; Confidentiality; Cooperation. (a) Subject to applicable Law, the Company shall, and Each party shall cause each Company Subsidiary to, afford to Parent the other party and to its accountants, counsel, financial advisors and other representatives (the Representatives of Parent reasonable "Representatives") full access during normal business hours, upon reasonable advance notice, during hours throughout the period prior to the Effective Time, Time to all their respective of its (and its Subsidiaries') properties, books books, contracts, commitments and records andrecords. All non-public information furnished pursuant to the provisions of this Agreement, during including without limitation this Section, will be kept confidential and shall not, without the prior written consent of the party disclosing such periodinformation, be disclosed by the Company shallother party in any manner whatsoever, in whole or in part, and shall cause each Company Subsidiary to, furnish reasonably promptly to Parent all other information concerning its business, properties and personnel as Parent may reasonably request not be used for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement (purposes, other than in each case, in a manner so as to not interfere in any material respect connection with the normal business operations of the Company or any Company Subsidiary); provided, however, that the Company Merger. In no event shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would (a) violate the terms of any confidentiality agreement or other Contract with a third either party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); (b) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); or (c) violate any Law (provided that the Company shall use its commercially reasonable efforts to provide such access or make such disclosure in a manner that does not violate Law). Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 7.02 to the extent such access or information is reasonably pertinent to a litigation where the Company or any of its AffiliatesRepresentatives use such information to the detriment of the other party. Each party agrees to reveal such information only to those of its Representatives who need to know such information for the purpose of evaluating the Merger, on who are informed of the one handconfidential nature of such information and who shall undertake in writing (a copy of which, if requested, will be furnished to the disclosing party) to act in accordance with the terms and conditions of this Agreement. From and after the Closing, the Company Stockholder shall not, without the prior written consent of American, disclose any information remaining in his possession with respect to the Company, and Parent or any of its Affiliates, on the other hand, are adverse parties. All no such information exchanged pursuant to this Section 7.02 shall be subject used for any purposes, other than in connection with the Merger or to the confidentiality agreement, dated as of June 21, 2019 between Parent and the Company (the “Confidentiality Agreement”)extent required by Applicable Law.
(b) Without limiting Notwithstanding the generality provisions of Section 7.02(a5.1(a), during each party may disclose such information as may be required by Applicable Law to be disclosed. In the period from the date event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver all non-public written material provided pursuant to this Section or any other provision of this Agreement or otherwise in connection with the Merger and shall not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof, which shall be delivered to independent counsel for such party.
(c) No investigation pursuant to this Section or otherwise shall affect any representation or warranty in this Agreement of either party or any condition to the earlier obligations of the Closing and parties hereto.
(d) Each of the dateparties hereto shall use reasonable business efforts to take, if anyor cause to be taken, on which the Agreement is validly terminated pursuant to and in accordance with Article IX, the Company agrees to, all actions and to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate the Company Subsidiaries to, subject to applicable Law and Section 7.02(a) (i) reasonably assist and reasonably cooperate with Parent and its Subsidiaries to facilitate planning for the post-Closing integration of the Company and the Company Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to key personnel identified by Parent to facilitate Parent’s efforts with respect to the post-Closing retention of such key personnel and (iii) provide Parent with reasonable periodic updates on activities relating to the integration of the Company’s existing businessesMerger.
Appears in 1 contract
Samples: Merger Agreement (American Radio Systems Corp /Ma/)
