Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, the Company shall give the Buyer and Merger Sub and their respective authorized Representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub or any of their respective authorized Representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a). (b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed). (c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date. (d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees. (e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, reasonable time to comment on such release, materials or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from 5.4.1 From the date of this Agreement to hereof until the earlier of the Closing Date Time and the termination of this Agreement Agreement, subject to compliance with applicable Law and the terms of any existing Contracts and provided that it would not unreasonably interfere with the business and affairs of Niobec or the Subsidiary or may result in accordance with Article 10a waiver of solicitor-client or other legal privilege, IAMGOLD shall, upon prior written notice, permit the Company shall give the Buyer Purchaser and Merger Sub its officers, employees, agents and their respective authorized Representatives representatives reasonable access during normal regular business hours to all Niobec’s and the Subsidiary’s books, records, offices Contracts and, with XXXXXXX’s prior written consent (such consent not to be unreasonably withheld), facilities, including the Niobec Immovable Property, Niobec Mine and other facilities Niobec Property, and properties of shall furnish the Company Purchaser and each Company its officers, employees, agents and representatives with all data and information regarding Niobec and the Subsidiary as the BuyerPurchaser may reasonably request and shall allow the Purchaser to perform such assessments, Merger Sub investigations, audits and analysis as the Purchaser may reasonably wish to undertake. IAMGOLD shall provide the Purchaser and its officers, employees, agents and representatives with reasonable access to Xxxxxxxx Xxx-Xxxxx, Vice President and General Manager of Niobec, Xxxxxxx Xxxx, Vice President of Niobec or any officers, employees, agents or representatives of their respective authorized Representatives may Niobec to which Xxxxxxxx Xxx-Xxxxx or Xxxxxxx Xxxx consent in writing (such consent not to be unreasonably withheld, conditioned or delayed). Except as expressly provided in the immediately preceding sentence, neither the Purchaser nor any of its officers, employees, agents or representatives shall have any written or oral communications with any of the employees of Niobec or the Subsidiary without XXXXXXX’s prior written consent. The Purchaser will be entitled to nominate from time to time reasonably requesta representative of the Purchaser acceptable to IAMGOLD, acting reasonably, solely to observe (and, for certainty, not to vote) at any and all in person meetings of the board of directors or other material board committees of Niobec; providedprovided that such observer shall be bound by obligations of confidentiality satisfactory to IAMGOLD, howeveracting reasonably, that and shall not be permitted to attend any portion of any such meeting at which commercially or competitively sensitive information, or any matter relating to this Agreement that could prejudice IAMGOLD if the observer were to be in attendance, is to be discussed.
5.4.2 In the event that IAMGOLD does not provide access or information due to applicable Law, the terms of any existing Contracts, obligation of confidentiality or solicitor-client or other legal privilege, IAMGOLD shall provide notice to the Purchaser that it is withholding such access or information and IAMGOLD shall use commercially reasonable efforts to communicate, to the extent permitted by the applicable Law, Contract or obligation of confidentiality or privilege, the applicable information in a way that would not violate the applicable Law, Contract or obligation of confidentiality or waive privilege.
5.4.3 After the date hereof and until the Closing, and subject to Section 5.4.1, IAMGOLD and the Purchaser shall each appoint two representatives who, together with Xxxxxxxx Xxx-Xxxxx, Vice President and General Manager of Niobec or his designate, will form a committee to meet and discuss on a periodic basis matters relating to transition of the operation and management of Niobec following Closing.
5.4.4 The Purchaser acknowledges and agrees that information furnished pursuant to this Section 5.4 shall be conducted in a manner not subject to unreasonably interfere with the Business or operations terms and conditions of the Company IAMGOLD Confidentiality Agreement.
5.4.5 Each of IAMGOLD and the Company Subsidiaries Purchaser shall publicly announce the transactions contemplated by this Agreement promptly following the execution of this Agreement by the Parties. IAMGOLD and none Niobec agree to co-operate in the preparation of any press releases and other public filings regarding this Agreement or the Buyer nor any of its Affiliates transactions contemplated by this Agreement, and no Party shall, directly subject to applicable Laws or indirectlystock exchange rules, conduct issue any press release or cause any invasive sampling or testing otherwise make public announcements with respect to the Real Property or any other property of the Company this Agreement or the Company Subsidiaries transactions contemplated by this Agreement without the prior written consent of the Company, other Parties (which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access the foregoing shall be conducted in a manner not subject to unreasonably interfere with the businesses each Party’s overriding obligation to make any disclosure or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be filing required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement under applicable Laws or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Personstock exchange rules, provided that the Party making such Person is subject disclosure shall use all commercially reasonable efforts to confidentiality restrictions no less restrictive than those set forth in give prior oral or written notice to the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations other Parties and reasonable opportunity to review or comment on the Securityholder Representative with respect disclosure or filing, and if such prior notice is not possible, to give such notice promptly following the Securityholder Representative’s making of such disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employeesfiling.
(e) Neither the Securityholder Representative or the Company5.4.6 Except as provided in Section 5.4.5, on the one handno Party shall, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer other Party, disclose the terms or conditions of this Agreement, the Financing or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one handFinancing Commitment Letters, or the Securityholder Representative transactions contemplated hereby and the Company, on the other hand, as applicable, reasonable time to comment on such release, materials or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))thereby.
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, the Company Hyla shall (i) give the Buyer Endexx and Merger Sub and their respective authorized its Representatives reasonable access during normal business hours to (and the right to inspect) all books, records, Contracts, offices and other facilities facilities, properties, and properties data of the Company and each Company Subsidiary Hyla as the Buyer, Merger Sub Endexx or any of their respective authorized its Representatives may from time to time reasonably request; provided, however, that any such access and inspection shall be conducted in a manner not to unreasonably interfere with the Business business or operations of Hyla unreasonably; and (ii) furnish Endexx and its Representatives with such financial, operating, and other data and information relating to Hyla that Endexx may reasonably request (including monthly financial statements for periods following the Company and the Company Subsidiaries and none date of the Buyer nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayedLater Unaudited Balance Sheet). Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary Hyla shall not be required to provide such access or disclose any information to the Buyer, Merger Sub Endexx or any of their respective authorized its Representatives, if doing so could would, based on the advice of Hyla’s outside counsel, (iA) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (B) violate any agreement or Law to which the Company or any Company Subsidiary Hyla is a party or to which the Company or any Company Subsidiary Hyla is subject or (ii) result provided that, in the waiver of either such case, Hyla and Endexx shall cooperate in seeking alternative means whereby such information may be disclosed to Endexx without jeopardizing any legal such privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with violating any such investigation conducted by the Buyer, Merger Sub agreement or their officers and other authorized Representatives pursuant to this Section 7.3(aLaw).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a No party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, other parties hereto (which consent shall not be unreasonably withheld, conditioned delayed, denied, or delayedconditioned); provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel (including in-house counsel) required by LawLaw or stock exchange requirements, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable commercial efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, party reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, the Company shall give the Buyer and Buyer, Merger Sub I, Merger Sub II LLC and their respective authorized Representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub I, Merger Sub II LLC or any of their respective authorized Representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business businesses or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not to be unreasonably withheld, conditioned or delayedgranted in the Company’s sole discretion. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub I, Merger Sub II LLC or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or Company, any Company SubsidiarySubsidiary or the Seller; provided provided, that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; protection and provided further provided, further, that the Company shall not be required to disclose to the Buyer, Merger Sub I, Merger Sub II LLC or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company Seller’s Representative (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger SubSub I, Merger Sub II LLC or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Evaluation Material” (“Confidential Information” ”) subject to the Confidentiality Agreement, dated as of March 8April 27, 20242017, by and between the Company IEA and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger SubSub I, Merger Sub II LLC and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer Buyer, Merger Sub I and Merger Sub II LLC shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, only to the extent reasonably necessary in connection with audit, accounting or tax matters and subject to any applicable privilege (including, including the attorney-client privilege), give the Securityholder Seller’s Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b))records; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its the Company Subsidiaries; provided further that (A) neither . Notwithstanding any provision to the Surviving contrary in this Agreement, the Buyer and the Company nor its Subsidiaries shall not be required to disclose any information provide to the Securityholder Seller’s Representative and its Representativesaccess to any consolidated, if doing so could combined, unitary or other Tax Returns (yor related work papers) violate including the Buyer or any agreement or Law to which Affiliate thereof other than the Company or any Company Subsidiary is a party or to which and the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employeesSubsidiaries.
(e) Neither the Securityholder Representative or Seller nor the Company, on the one hand, nor or the Buyer Buyer, Merger Sub I or Merger SubSub II LLC, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder RepresentativeSeller’s Representative and the Company, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, Buyer or the Securityholder Seller’s Representative and the Company, on the other hand, as applicable, reasonable time to comment on such release, materials or announcement in advance of its issuance; provided further provided, further, that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, IEA or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (M III Acquisition Corp.)
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10Upon reasonable notice, the Company shall give (and shall cause each of its Subsidiaries to) afford to the Buyer officers, employees, accountants, counsel and Merger Sub other representatives and their respective authorized Representatives reasonable access agents of Parent (collectively "Parent Representatives"), full access, during normal business hours the period prior to the Effective Date, to all its properties, books, recordscontracts, offices commitments and other facilities and properties of records and, during such period, the Company shall (and shall cause each Company Subsidiary as the Buyer, Merger Sub or any of their respective authorized Representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect Subsidiaries to) furnish promptly to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could Parent (i) violate any agreement a copy of each report, schedule, registration statement and other document filed or Law received by it pursuant to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or Legislation during such period and (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the all information concerning its business, properties, books, contracts, commitments, record and personnel as Parent may reasonably request. The Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; (and provided further that the Company shall not be required to disclose cause each of its Subsidiaries to) make available to the Buyerother party the appropriate individuals for discussion of such entity's business, Merger Sub properties and personnel as Parent or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this AgreementParent Representatives may reasonably request. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such No investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)shall affect any representations or warranties of the parties herein or the conditions to the obligations of the parties hereto.
(b) It is agreed thatParent shall keep all information obtained pursuant to clause (a) above confidential in accordance with the terms of the Confidential Non-Disclosure Agreement, except dated July 6, 2000 (the "Confidentiality Agreement"), between Parent and the Company. Anything contained in the ordinary course of business consistent with past practice, during the period from the date of this Confidentiality Agreement to the earlier of contrary notwithstanding, the Closing Date Company and the termination of this Agreement Parent hereby agree that each such party may issue press release(s) or make other public announcements in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company clause (which shall not be unreasonably withheld, conditioned or delayed)c) below.
(c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company Parent and the Company Subsidiaries in shall consult with and obtain the possession approval of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a other party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of before issuing any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to the Arrangement or this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent and shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of issue any such press releaserelease prior to such consultation and approval, materials filed with or furnished except as may be required by applicable Law pursuant to the SEC or written request of any stock national securities exchange, national automated quotation system, a Canadian Securities Administrator or public announcement to a stock exchange upon which the extent that such disclosure is upon advice of counsel required by LawCompany's shares are listed, in which case the Party making party proposing to issue such determination will, if practicable in the circumstances, press release or make such public announcement shall use reasonable its best efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on consult in good faith with the other hand, as applicable, reasonable time to comment on party before issuing any such release, materials press release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, making any such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))public announcement.
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of (i) the Closing Date and (ii) the termination of this the Agreement in accordance with Article 10ARTICLE X, the Company shall give the Buyer and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each the Company Subsidiary Subsidiaries as the Buyer, Merger Sub or any of their respective its authorized Representatives representatives, may from time to time reasonably requestrequest from either the Chief Executive Officer or Chief Financial Officer of the Company; provided, however, that any such access shall be conducted in a manner not to unreasonably materially interfere with the Business businesses or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, shall not conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)Property.
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Buyer or any of their its authorized Representatives representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute be “Confidential InformationEvaluation Materials” subject (herein referred to as “Evaluation Material”) as defined in the Confidentiality Agreement, dated as of March 8January 24, 20242007, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Buyer in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement, including returning or destroying all Evaluation Material and the non-soliciting of employees of the Company and the Company Subsidiaries. The Confidentiality Agreement shall terminate on the Closing Date.
(dc) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a No party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedother parties hereto; provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by Lawlaw, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Samples: Stock Purchase Agreement (MBF Healthcare Acquisition Corp.)
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement in accordance with Article 10, the Company Companies shall give the Buyer and Merger Sub and their respective its authorized Representatives reasonable access access, exclusively for purposes related to the transactions contemplated hereby (including for the purpose of preparing to own the Ownership Interests and operate the business of the Companies and the Fabri-Kal Subsidiaries after the Closing), during normal business hours to all books, records, offices and other facilities and properties of the Company Companies and each Company Subsidiary the Fabri -Kal Subsidiaries, and shall make the officers, employees, consultants, agents, accountants, attorneys and other Representatives of the Companies and the Fabri-Kal Subsidiaries available to Buyer and their authorized Representatives, as the Buyer, Merger Sub Buyer or any of their respective its authorized Representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business businesses or operations of the Company Companies and the Company Fabri-Kal Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, shall not conduct or cause any invasive sampling or testing of building materials or the environment with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayedreal property. Notwithstanding anything to the contrary in this Agreement, neither none of the Company nor Companies or any Company Fabri-Kal Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective its authorized Representatives, if doing so could would (i) violate any agreement or any Law to which the Company Companies or any Company Fabri-Kal Subsidiary is a party or to which the Company Companies or any Company Fabri-Kal Subsidiary is subject or (ii) result in the waiver of compromise any legal privilege or work product protection of privilege; provided, that if Buyer requests access to information that is subject to such restrictions, Seller shall cause the applicable Company or any Company Subsidiary; provided that the Company shall Fabri-Kal Subsidiary to use its commercially reasonable efforts to (x) disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted permissible by the Buyerapplicable restriction, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, reasonable time to comment on such release, materials or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).and
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement in accordance with Article 10, the Company shall give the Buyer Purchaser and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub or any of their respective Purchaser and its authorized Representatives representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business businesses or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shalland, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheldneither the Purchaser nor any of its Affiliates or Representatives shall, conditioned directly or delayedindirectly, conduct any appraisals or environmental and engineering inspections of real property, or take and/or analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or perform any invasive testing procedure on any building or real property. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to provide such access or disclose any information to the Buyer, Merger Sub Purchaser or any of their respective its authorized Representativesrepresentatives, if doing so could (i) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (ii) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiarysubject; provided that that, if requested by Purchaser, Seller and the Company shall use commercially reasonable efforts reasonably cooperate to disclose facilitate access to such information in a manner as not to violate that preserves such agreement, privilege and/or complies with such Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Purchaser or any of their its authorized Representatives representatives pursuant to paragraphs (aSection 7.3(a) or (b) above shall constitute “Confidential Information” be subject to the Confidentiality Agreement, dated as of March 8May 15, 20242017, by and between the Company American Securities LLC and the Buyer Purchaser, as amended (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Purchaser in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub Purchaser shall comply with the terms and provisions of the Confidentiality Agreement. The , including returning or destroying all “Confidential Information” (as defined in the Confidentiality Agreement shall terminate on the Closing Date.
(dAgreement) Each of the Buyer and the Surviving Company acknowledges non-soliciting and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect non-hiring of employees of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(ec) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, No party will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedother parties hereto; provided, however, that the parties hereto will agree on the initial press release announcing the execution of this Agreement prior to its public release and nothing herein will prohibit (i) any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by Lawlaw, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable commercial efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; , (ii) Purchaser from disclosing this Agreement and the terms hereof (other than the Company Disclosure Letter) in its filings with the SEC (provided further that that, prior to the foregoing shall not restrict disclosures of information made by Closing, Seller will allow the Seller reasonable time to review and comment on such disclosure), or on behalf (iii) American Securities LLC and its Affiliates from communicating with the current or prospective limited partners of the Buyer, investment funds managed by American Securities LLC and its Affiliates regarding this Agreement or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))transactions contemplated hereby.
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement in accordance with Article 10ARTICLE 11, the Company shall give the Buyer and Merger Sub its counsel, accountants, consultants, financial advisors, agents and other representatives (including its financing sources and their respective authorized Representatives counsel, accountants and other representatives) (including the Buyer, collectively, the “Buyer Representatives”), in each case that have agreed to be bound by the Confidentiality Agreement, reasonable access during normal business hours to all books, records, offices and offices, premises other assets, facilities and properties of the Company and each Company Subsidiary the Company’s Subsidiaries as the Buyer, Merger Sub or any of their respective its authorized Representatives representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere in any material respect with the Business businesses or operations of the Company or its Subsidiaries and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, shall not conduct or cause any invasive environmental sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayedProperty. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary and its Subsidiaries shall not be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized the Buyer Representatives, if doing so could (i) violate any agreement or Law federal, state, provincial, municipal, local or foreign law, rule or regulation to which the Company or any Company Subsidiary of the Company’s Subsidiaries is a party or to which the Company or any Company Subsidiary is of the Company’s Subsidiaries are subject or (ii) result in the a waiver of any attorney-client, work-product or other legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts with respect to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)information.
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Buyer or any of their its authorized Representatives representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute “Confidential Information” be subject to the Confidentiality Agreement, dated as of March 8July 3, 20242006, by and between the Buyer and UBS Securities LLC, as representative of the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Buyer in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate at the Effective Date.
(c) From and after the Closing, each Seller will, and will cause its Affiliates to, keep confidential all confidential information relating to the Company’s and its Subsidiaries’ business (the “Confidential Information”). In the event that, after the Closing, any Seller or any of its Affiliates are required by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process to disclose any of the Confidential Information, such Person shall provide the Company with prompt prior written notice of such requirement, shall cooperate (unless prohibited by law) with any effort the Company may make to obtain a protective order or similar action to prevent the disclosure of Confidential Information, and if no such order is obtained or the Company waives the requirements of this Section 7.4(c), such Person shall furnish only that portion of the Confidential Information that it is advised by counsel is legally required, and such Person shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information. The term “Confidential Information” does not include any information that (i) at the time of disclosure is generally available to and known by the public (other than as a result of a disclosure by any Seller or its Affiliate) or (ii) was available to such Seller or its Affiliate on a non-confidential basis from a source (other than the Closing DateCompany or its Subsidiaries) that is not and was not prohibited from disclosing such information to such Seller or its Affiliate by a contractual, legal, or fiduciary obligation. To the extent any Management Seller has a confidentiality obligation under the provisions of an employment agreement with the Company or its Subsidiary, the employment agreement of such Seller shall control and replace the applicable matters covered by this Section 7.4(c). Notwithstanding the foregoing, the announcement, description or discussion of the transactions contemplated by this Agreement and any related matters required to be disclosed in any public filing shall not be subject to the requirements of this Section 7.4(c), but shall be subject to Section 7.2(d). Notwithstanding the foregoing, nothing in this Section 7.4(c) shall prohibit or restrict the Securityholder Representative or any Securityholder from disclosing Confidential Information in connection with the enforcement of such Person’s rights, or the with the defense of claims against such Person, under this Agreement or in connection with the Contemplated Transactions.
(d) Each Unless otherwise required by applicable Legal Requirement or the rules of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from stock exchange, prior to the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect pertaining to this Agreement or the transactions contemplated hereby Contemplated Transactions will be made by any party hereto without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned except that any party may make any disclosure required by applicable Legal Requirement (including federal securities laws) or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication the rules of any applicable stock exchange if it determines in good faith that it is required to do so and, with respect to such disclosure, provides the other with prior notice and a reasonable opportunity to review the disclosure. Prior to issuing a press release, materials filed with release or furnished to the SEC or any stock exchange, or other public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, applicable Legal Requirement or the Securityholder Representative rules of any applicable stock exchange with respect to Contemplated Transactions, the parties shall consult with each other and the Company, on the other hand, as applicable, each party shall have a reasonable time opportunity to comment on such release, materials or announcement in advance of its press release prior to issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of (i) the Closing Date and (ii) the termination of this the Agreement in accordance with Article 10ARTICLE XI, (x) the Company shall give the Buyer Parent and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each the Company Subsidiary Subsidiaries as the BuyerParent, Merger Sub or any of their respective its authorized Representatives representatives, may from time to time reasonably requestrequest from either the Chief Executive Officer or Chief Financial Officer of the Company; provided, however, that any such access shall be conducted in a manner not to unreasonably materially interfere with the Business businesses or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, Parent shall not conduct or cause any invasive sampling or testing with respect to the Real Property or any Property, and (y) the Parent shall give the Company and its authorized representatives reasonable access during normal business hours to all books, records, offices and other property facilities and properties of the Company or the Company Parent and its Subsidiaries without the prior written consent of as the Company, which consent shall not be unreasonably withheldor its authorized representatives, conditioned may from time to time reasonably request from either the Chief Executive Officer or delayed. Notwithstanding anything to Chief Financial Officer of the contrary in this AgreementParent; provided, neither the Company nor however, that any Company Subsidiary such access shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information conducted in a manner as not to violate such agreement, Law, privilege materially interfere with the businesses or protection; operations of the Parent and provided further that its Subsidiaries and the Company shall not be required to disclose conduct any invasive sampling or testing with respect to the Buyer, Merger Sub real property of the Parent or any of their respective authorized Representatives, any information related to the sale of the Company and the Company its Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by either the BuyerParent, Merger Sub, the Company or any of their authorized Representatives representatives pursuant to paragraphs (aSection 8.2(a) or (b) above shall constitute “be Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, Parent and their respective Representatives the Company in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer Parent and Merger Sub the Company shall each comply with the terms and provisions of the Confidentiality Agreement, including returning or destroying all Confidential Information and the non-soliciting of employees of the other party and its Subsidiaries. The Confidentiality Agreement shall automatically terminate on the Closing Date.
(dc) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a No party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or Stockholders’ Representative and the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedParent; provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by Lawlaw, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 109, the Company shall give the Buyer Parent and Merger Sub and their respective its authorized Representatives Representatives, reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company Group as Parent and each Company Subsidiary as the Buyer, Merger Sub or any of their respective its authorized Representatives may from time to time reasonably request; provided, however, that (i) any such access shall be subject to the Company Group’s reasonable security measures and insurance requirements and conducted in a manner not to unreasonably interfere with the Business businesses or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shallGroup, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; Parent and provided further that the Company its Representatives shall not be required to disclose to the Buyer, Merger Sub contact or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection otherwise communicate with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether Group in person or by telephone, mail or other means of communication, connection with respect to the transactions contemplated hereby, hereby unless (x) approved in writing in advance by the Company, (y) such contact is in the Company Subsidiaries ordinary course of Parent’s business consistent with past practice and unrelated to the transaction contemplated hereby, or their respective businesses without (z) such contact is with the specific authorization employees of the Company Group listed on Section 6.2(a) of the Disclosure Letter and relates to post-closing integration, transitional or employment matters, (which iii) the Company shall not be required to disclose any information to Parent or its authorized Representatives if doing so would violate the confidentiality provisions under any Contract to which any member of the Company Group is a party or to which any member of the Company Group is subject, (iv) Parent and its authorized Representatives shall not conduct any invasive sampling of the Environment or building materials at any such facilities or properties, and (v) nothing herein shall require the Company to furnish to Parent or provide Parent with access to information that is subject to attorney-client privilege; provided, that in connection with the foregoing clauses (i) through (v), the Company shall use its reasonable best efforts to make alternative arrangements in order to provide such information or access if requested by Parent in a manner that would not unreasonably withheldinterfere with the operations of the Company Group or otherwise violate any Contract, conditioned duty or delayedprivilege of the Company Group (collectively the “Access and Assistance Limitations”).
(cb) Any confidential, non-public or proprietary information of the Company Group provided to or obtained by the Buyer, Merger Sub, Parent or any of its authorized Representatives and their authorized Representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute be “Confidential InformationEvaluation Material” subject to as defined in the Confidentiality Agreementnon-disclosure agreement, dated as of March 830, 20242021, by and between the Company and the Buyer AM Holdco, Inc. d/b/a Simplura Health Group (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Parent in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub Parent shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on automatically upon the Closing Dateoccurrence of the Effective Time.
(dc) Each of the Buyer No party will (and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or each party shall cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (inot to) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or other parties hereto and shall keep the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedterms of this Agreement and the other documents executed in connection herewith confidential; provided, however, that nothing herein will prohibit any Party party (or such Affiliate as the case may be) from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by LawLaw or the rules of any securities exchange to which such Person is subject, in which case the Party party (or such Affiliate, as the case may be) making such determination will, if practicable in the circumstances, use commercially reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further that . For the foregoing shall not restrict disclosures avoidance of information made by or on behalf of the Buyerdoubt, or their respective Affiliates or successors, on the one hand, each party hereto may make announcements to their respective direct employees or other business relations that are not inconsistent in any material respects with the parties’ prior public disclosures regarding the transactions contemplated by this Agreement. Notwithstanding the foregoing, the restrictions set forth in this Section 6.2(c) shall cease to apply to Parent, its Affiliates and indirect Affiliatesthe Company Group upon and after the Closing. Notwithstanding anything herein to the contrary, actual and potential investorsfollowing Closing, actual and potential financing sourcesthe Seller Representative shall be permitted to: (i) after the public announcement of the Merger, counsel, accountants, consultants and other advisors, on announce that it has been engaged to serve as the Seller Representative in connection herewith as long as such announcement does not disclose any of the other hand terms hereof; and (so long asii) disclose information as required by law or to advisors and representatives of the Seller Representative and to the Merger Participants, in each case, case who have a need to know such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))information.
Appears in 1 contract
Samples: Merger Agreement (ModivCare Inc)
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement in accordance with Article 10, the Company shall give the Buyer and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub or any of their respective its authorized Representatives representatives, may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to interfere unreasonably interfere with the Business businesses or operations of the Company and the Company Subsidiaries Subsidiaries, and none of the Buyer nor any of its Affiliates shall, directly or indirectly, shall not conduct or cause any invasive sampling or testing with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayedProperty. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective its authorized Representativesrepresentatives, if doing so could (i) would violate any agreement or Law federal, state, provincial, municipal, local or foreign law, rule or regulation to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)subject.
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Buyer or any of their its authorized Representatives representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute be “Confidential Information” subject (herein referred to as “Information”) as defined in the Reciprocal Confidentiality Agreement, dated as of March 8June 9, 20242011, by and between Attends Healthcare Products, Inc., on behalf of the Company Company, and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Buyer in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement, including returning or destroying all Information and the non-soliciting of employees of the Company and the Company Subsidiaries. The Confidentiality Agreement shall terminate on the Closing Date.
(dc) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a No party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedother parties hereto; provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by Lawlaw, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement Subject to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, the Company shall give the Buyer and Merger Sub and their respective authorized Representatives reasonable access during normal business hours to all books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub or any of their respective authorized Representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing Section 7.7(f) with respect to the Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the CompanyTax records, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The each Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, or any of their authorized Representatives pursuant to paragraphs (a) or (b) above shall constitute “Confidential Information” subject to the Confidentiality Agreement, dated as of March 8, 2024, by and between the Company and the Buyer (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on the Closing Date.
(d) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company Sellers and the Company Subsidiaries in the possession of the such Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven five (75) years from the Closing Date. Each of the Subject to Section 7.7(f) with respect to Tax records and matters, as long as any claims for indemnification may be brought or are pending pursuant to Article 8, each Buyer and the Surviving Company shall, upon reasonable notice, only to the extent reasonably necessary in connection with audit, accounting or Tax matters and subject to any applicable privilege (including, including the attorney-client privilege), give the Securityholder Representative Seller Parties and its their authorized Representatives reasonable access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b))records; provided, however, that any such access shall be conducted in a manner so as to not to unreasonably interfere with the businesses or operations of the Surviving Company Sellers and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or Subsidiaries.
(b) Following the Closing, subject to which the Company or any Company Subsidiary is subject or (z) result in the waiver that certain Audit Expense Sharing Agreement, dated as of any legal privilege or work product protection of the Company or any Company Subsidiary October 2, 2017, by and (B) the Securityholder Representative between Buyer Parent and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the BuyerWilton Brands LLC, the Company or any Company Subsidiary, or Seller Parties shall use their respective Representatives, pursuant to this Section 7.3(d)commercially reasonable efforts to, and not disclose shall cause their Affiliates to use their commercially reasonable efforts to, and refrain from using any such shall use commercially reasonable efforts to cause their Representatives to, (i) provide all financial and other information except as expressly permitted under this Section 7.3(d). Notwithstanding required for the foregoing or Section 7.3(e), completion by the Securityholder Representative may disclose information in the administration Buyers of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative all filing requirements with respect to the Securityholder Representative’s disclosure filing with the United States Securities and Exchange Commission of audited abbreviated statements of Purchased Assets acquired and Assumed Liabilities assumed and of revenues and direct expenses, in each case on a Current Report on Form 8-K in satisfaction of the requirements of Rule 3-05 of Regulation S-X in connection with the Transactions, and (ii) reasonably cooperate in connection with the preparation of such financial or other information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.reasonably required in connection with such filing requirements
(ec) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, No party will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement the Transaction Documents or the transactions contemplated hereby Transactions without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayedother parties hereto; provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further provided, further, that the foregoing shall not restrict disclosures of information made by or on behalf of (i) the Buyer, or Seller Parties and/or their respective Affiliates or successors, on or (ii) the one handBuyers and/or their Affiliates or successors, in each case, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand advisors (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)). Notwithstanding the foregoing, the parties shall issue a joint press release in connection with the consummation of the Transactions on the Closing Date in form and substance mutually satisfactory to the parties.
Appears in 1 contract
Samples: Asset and Securities Purchase Agreement (CSS Industries Inc)
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of (i) the Closing Date and (ii) the termination of this the Agreement in accordance with Article 10IX, except as otherwise prohibited by applicable Law or the terms of any Contract entered into prior to the date hereof to which the Company or any Company Subsidiary or the Parent is a party or as would be reasonably expected to violate the attorney-client privilege, work product doctrine, self-audit privilege or the similar privilege of the Company or any Company Subsidiary or the Parent (it being agreed that the parties shall use their reasonable efforts to cause such information to be provided in a manner that does not cause such violation or prohibition) and, subject to applicable laws relating to the exchange of information and the preservation of any applicable attorney-client privilege, work-product doctrine, self-audit privilege or other similar privilege, each party shall give the Buyer other party and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all of its books, records, offices and other facilities and properties of the Company and each Company Subsidiary as the Buyersuch other party, Merger Sub or any of their respective its authorized Representatives representatives, may from time to time reasonably requestrequest from either the Chief Executive Officer or Chief Financial Officer of the party; provided, however, that any such access shall be conducted in a manner not to unreasonably materially interfere with the Business businesses or operations of the Company party and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, no party shall conduct or cause any invasive sampling or testing with respect to the Real Property or any other real property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub or any of their respective authorized Representatives, if doing so could (i) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose such information in a manner as not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)party.
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Parent or any of their its authorized Representatives representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute be “Confidential InformationEvaluation Materials” subject (herein referred to as “Evaluation Material”) as defined in the Mutual Nondisclosure Confidentiality Agreement, dated as of March 8January 21, 20242008, by and between the Company WF Holdings and the Buyer Parent (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Parent in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub Parent shall comply with the terms and provisions of the Confidentiality Agreement, including returning or destroying all Evaluation Material and the non-soliciting of employees of the Company and the Company Subsidiaries. The Confidentiality Agreement shall terminate on the Closing Date.
(dc) Each of the Buyer Parent and the Surviving Company acknowledges agrees to consult and agrees that it shallobtain the approval of the other before issuing any press release or announcement concerning the transactions contemplated hereby, from and after the Closing, preserve and keep, shall not issue or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of issued any such press release, materials filed with release prior to such consultation and approval except as such release or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel may be required by LawLaw or the rules or regulations of any applicable United States securities exchange, in which case the Party making such determination will, if practicable in party required to make the circumstances, release or announcement shall use its reasonable best efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on consult in good faith with the other hand, as applicable, reasonable time party and attempt to comment on agree upon mutually satisfactory text before issuing any such release, materials press release or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, making any such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))public announcement.
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement in accordance with Article 10, the Company and the Guarantor shall give the Buyer and Merger Sub and their respective its authorized Representatives representatives reasonable access during normal business hours to all books, records, offices and other facilities facilities, personnel and properties of the Company and each Company Subsidiary as the Buyer, Merger Sub or any of their respective its authorized Representatives representatives may from time to time reasonably request; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the Business business or operations of the Company and the Company Subsidiaries and none of the Buyer nor any of its Affiliates shall, directly or indirectly, shall not conduct or cause any invasive sampling or testing with respect to the Leased Real Property or any other property of the Company or the Company Subsidiaries without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayedProperty. Notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement, (i) neither the Company nor any Company Subsidiary shall be required to disclose any information to the Buyer, Merger Sub Buyer or any of their respective its authorized Representativesrepresentatives, if doing so could (i) violate any agreement or Law Contract to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided subject, provided, however, that the Company shall use all commercially reasonable efforts to disclose seek waivers to provide such information in a manner as not to violate and shall provide redacted copies of such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission permissible if waivers cannot be obtained, (ii) with the prior written consent of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), the Buyer and its authorized representatives shall be permitted to contact the customers, suppliers and other business relationships of the Company and the Company Subsidiaries, and (iii) the limited partners of investment funds affiliated with Siris Capital Group, LLC and their Related Persons, and their respective Representatives shall be “Representatives” of the Buyer for purposes of the Confidentiality Agreement.
(cb) Any information provided to or obtained by the Buyer, Merger Sub, Buyer or any of their its authorized Representatives representatives pursuant to paragraphs paragraph (a) or (b) above shall constitute be “Confidential InformationEvaluation Material” subject (herein referred to as “Evaluation Material”) as defined in the Confidentiality Agreement, dated as of March 8September 21, 20242016, by and between the Company Mitel Networks Corporation and the Buyer Xura, Inc. (the “Confidentiality Agreement”), unless within an exception thereto, and shall be held by the Buyer, Merger Sub, and their respective Representatives Buyer in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub shall comply with the terms and provisions of the Confidentiality Agreement, including returning or destroying all Evaluation Material and the non- soliciting of employees of the Company and the Company Subsidiaries as and to the extent set forth therein. The Except with respect to Evaluation Material about the Seller and its Affiliates (excluding the Company and its Subsidiaries), the Confidentiality Agreement shall terminate on the Closing Date.
(c) Except for a press release issued pursuant to Section 7.2(d), from and after the Closing Date, the Seller and the Guarantor shall not (and shall, subject to applicable Law, cause their respective Subsidiaries and representatives not to) disclose to any Acquiror or Third Party (other than their respective directors, officers, employees, attorneys, lenders, and accountants) any of the terms and conditions of the Transactions or under this Agreement or any Ancillary Agreements, or any Confidential Information concerning the Company, any Company Subsidiary or the Business, other than any Confidential Information that is later lawfully acquired by Seller or the Guarantor from sources other than those related to its prior ownership of the Company and the Company Subsidiaries without any breach of any obligation (fiduciary, contractual or otherwise) to the Buyer, the Company, the Company Subsidiaries or any of their respective Related Persons. The restrictions in the foregoing sentence shall not apply to a disclosure required by applicable Law or Governmental Authority or in connection with any legal, regulatory, judicial, arbitral or administrative process (including any deposition, interrogatory, oral questioning, requests for information or documents, subpoena, court order, regulatory filing, civil investigative demand or other similar legal process) or any audit or inquiry by a regulator, bank examiner or auditor, self-regulatory authority or pursuant to mandatory professional ethics rule so long as the disclosing party provides the Buyer with prior written notice and cooperates with the Buyer, at the Buyer’s expense, to obtain a protective Order or other confidential treatment to the extent requested by the Buyer; provided that such disclosing party shall furnish only that portion of such information which it is advised by counsel is legally required to be disclosed. For the avoidance of doubt, this Agreement and a description of the Transactions will be filed by the Guarantor with the United States Securities and Exchange Commission and Canadian securities regulatory authorities and available to the public. The Buyer shall be given a reasonable amount of time to review and comment on such filings, which comments will be reasonably considered by the Guarantor; provided, however that the consent of the Buyer shall not be required in connection with any such filings.
(d) The initial press releases of the Guarantor and the Buyer with respect to the execution of this Agreement shall be issued within 24 hours of the date hereof in forms reasonably agreed by the Seller and the Buyer. Thereafter, no party will issue or cause the publication of any press release or other public announcement with respect to this Agreement or the Transactions except to announce the Closing; provided, however, that nothing herein will prohibit any party from issuing or causing publication of any such press release or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the other parties reasonable time to comment on such release or announcement in advance of its issuance; provided, further, that nothing herein shall prevent (i) the Guarantor, the Seller, the Company and the Company Subsidiaries from communicating with their respective employees with respect to this Agreement or the Transactions and (ii) the Buyer and its Affiliates from communicating with their respective Representatives, suppliers, customers, and Debt Financing Sources regarding this Agreement and the Transactions.
(e) Each of the Buyer and the Surviving Company acknowledges and parties agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer its or its Affiliates as of the Closing Affiliates’ possession for the longer of (i) any applicable statute of limitations and (ii) a period of seven six (76) years from the Closing Date. Each of the Buyer and the Surviving Company parties shall, upon reasonable noticenotice from another party, only to the extent reasonably necessary in connection with any Proceeding, audit or accounting matter and subject to any applicable privilege (including, the including attorney-client privilege), give the Securityholder Representative other party and its authorized Representatives Representatives, in each case, at the requesting party’s sole cost and expense, reasonable access during normal business hours to examine, inspect and copy such the books and records of the Company and the Company Subsidiaries in its or its Affiliates’ possession for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b))time periods ending prior to the Closing Date; provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that nothing herein will prohibit any Party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, or public announcement to the extent that such disclosure is upon advice of counsel required by Law, in which case the Party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, reasonable time to comment on such release, materials or announcement in advance of its issuance; provided further that the foregoing shall not restrict disclosures of information made by or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, to their respective direct and indirect Affiliates, actual and potential investors, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality)).
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this the Agreement pursuant to, and in accordance with with, Article 109, the Company shall give the Buyer Parent and Merger Sub and their respective its authorized Representatives Agents reasonable access during normal business hours to all books, records, key personnel, offices and other facilities and properties of the Company and each Company Subsidiary Group as the BuyerParent, Merger Sub or any of their respective its authorized Representatives Agents may from time to time reasonably request; provided, however, that (i) any such access shall be conducted in a manner not to unreasonably interfere with the Business businesses or operations of the Company and Group, (ii) any such access shall not result in the Company Subsidiaries and none waiver of the Buyer nor any of its Affiliates shallattorney client privilege, directly or indirectly, conduct or cause (iii) any such access shall not include conducting any invasive sampling or testing with respect to the Real Property and (iv) such access may be limited to the extent the Company reasonably determines, in light of any Emergency or any other property Emergency Measures, that such access would jeopardize the health and safety of any employees (provided, however, that the Company shall use commercially reasonable efforts to allow for such access, or as much of such access as is reasonably practicable, in a manner that does not jeopardize the Company Subsidiaries without the prior written consent health and safety of the Company, which consent shall not be unreasonably withheld, conditioned or delayedsuch employees). Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall be required to disclose any information to the BuyerParent, Merger Sub or any of their respective its authorized RepresentativesAgents, if doing so could (iA) violate (x) any agreement Contract or Law confidentiality obligation or (y) any Law, in each case, to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is are subject or (iiB) result in the waiver of compromise or waive any legal privilege or work product protection of the Company or any Company Subsidiaryprivilege; provided provided, that the Company shall use commercially reasonable efforts to disclose provide reasonable access to such information to Parent and its Agents in a manner as that does not to violate such agreement, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or result in any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with any such investigation conducted by the Buyer, Merger Sub or their officers and other authorized Representatives pursuant to this Section 7.3(a)foregoing.
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Parent or any of their its authorized Representatives Agents pursuant to paragraphs (a) or (bSection 6.2(a) above shall constitute be “Confidential Information” subject (herein referred to as “Confidential Information”) as defined in the Confidentiality Non-Disclosure Agreement, dated as of March 87, 2024, by and between the Company and the Buyer Parent (the “Confidentiality Agreement”), and shall be held by the Buyer, Parent and Merger Sub, and their respective Representatives Sub in accordance with and be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub Parent shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on , including with respect to returning or destroying all Confidential Information and the Closing Datenon-soliciting of employees of the Company Group.
(dc) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, No Party will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, which other Parties (such consent shall not to be unreasonably withheld, conditioned or delayed); provided, however, that nothing herein will prohibit any Party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is is, upon advice of counsel counsel, required by Law, in which case the Party making such determination will, if practicable in the circumstances, use its reasonable best efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, Parties reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further and provided, further, that nothing herein shall prohibit the foregoing shall not restrict disclosures Equityholders or any of information made by their direct and indirect parent entities and Affiliates from disclosing the terms and status of this Agreement or on behalf of the Buyer, or their respective Affiliates or successors, on the one hand, transactions contemplated hereby to their respective direct and indirect Affiliates, actual Agents, shareholders, limited partners, members or prospective limited partners or members. Notwithstanding the foregoing or anything in this Agreement to the contrary, following Closing and potential investorsafter the public announcement of the Merger, actual and potential financing sources, counsel, accountants, consultants and other advisors, on the Representative shall be permitted to announce that it has been engaged to serve as the Representative in connection herewith as long as such announcement does not disclose any of the other hand (so long as, in each case, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices (including with respect to confidentiality))terms hereof.
Appears in 1 contract
Access to Information; Confidentiality; Public Announcements. (a) During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, the Company shall (i) give the Buyer Parent and Merger Sub and their respective authorized its Representatives reasonable access during normal business hours to (and the right to inspect) all books, records, Contracts, offices and other facilities facilities, properties and properties data of the Company and each Company Subsidiary as the Buyer, Merger Sub Parent or any of their respective authorized its Representatives may from time to time reasonably request; provided, however, that any such access and inspection shall be conducted in a manner not to unreasonably interfere with the Business business or operations of the Company Company; and (ii) furnish Parent and its Representatives with such financial, operating and other data and information relating to the Company Subsidiaries that Parent may reasonably request (including monthly and none quarterly financial statements for periods following the date of the Buyer nor Unaudited Balance Sheet). Parent shall have the right, but not the obligation, to perform non-intrusive Phase I environmental investigations and compliance audits of any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Real Property from the date hereof through Closing. If, after the completion of this initial investigation and audit, Parent wishes to perform sampling, testing or assessment activities of any other property of the Company or the Company Subsidiaries without the prior written consent of Real Property that are intrusive in nature, Parent shall first obtain the Company, ’s prior consent (which consent shall not be unreasonably withheld, conditioned conditioned, delayed, or delayeddenied). Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Company Subsidiary shall not be required to provide such access or disclose any information to the Buyer, Merger Sub Parent or any of their respective authorized its Representatives, if doing so could would, based on the advice of the Company’s outside counsel, (iA) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (B) violate any agreement or Law to which the Company or any Company Subsidiary is a party or to which the Company or any Company Subsidiary is subject or (ii) result provided that, in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary; provided that the Company shall use commercially reasonable efforts to disclose either such information in a manner as not to violate such agreementcase, Law, privilege or protection; and provided further that the Company shall not be required to disclose to the Buyer, Merger Sub or any of their respective authorized Representatives, any information related to the sale of the Company and the Company Subsidiaries, including valuations and materials related Parent shall cooperate in seeking alternative means whereby such information may be disclosed to the negotiation of this Agreement. The Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries for any Losses actually incurred by the Company or its Subsidiaries to the extent that are directly caused by any negligent act or omission of the Buyer, Merger Sub or their officers and other authorized Representatives in connection with Parent without jeopardizing any such investigation conducted by the Buyer, Merger Sub privilege or their officers and other authorized Representatives pursuant to this Section 7.3(aviolating any such agreement or Law).
(b) It is agreed that, except in the ordinary course of business consistent with past practice, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article 10, neither the Buyer nor any of its Affiliates shall contact any of the employees, customers or suppliers of the Company or the Company Subsidiaries, whether in person or by telephone, mail or other means of communication, with respect to the transactions contemplated hereby, the Company, the Company Subsidiaries or their respective businesses without the specific authorization of the Company (which shall not be unreasonably withheld, conditioned or delayed).
(c) Any information provided to or obtained by the Buyer, Merger Sub, Parent or any of their authorized its Representatives pursuant to paragraphs (aSection 6.3(a) or (b) above shall constitute “Evaluation Material” (herein referred to as “Confidential Information” subject to ”) as defined in the Confidentiality Agreement, dated as of March 8May 6, 20242019, executed by an Affiliate of Parent and between the Company and the Buyer delivered to Xxxxx (the “Confidentiality Agreement”), and shall be held by the Buyer, Merger Sub, and their respective Representatives Parent in accordance with and be subject to the terms of the Confidentiality Agreement, provided, however, that no such information shall constitute Confidential Information to the extent it is excluded from the definition of “Evaluation Material” in the Confidentiality Agreement (including under Section 2(b) of the Confidentiality Agreement). Notwithstanding anything to the contrary herein, the terms and provisions of the Confidentiality Agreement shall survive the termination of this Agreement in accordance with the terms therein. In the event of the termination of this Agreement for any reason, the Buyer and Merger Sub Parent shall comply with the terms and provisions of the Confidentiality Agreement. The Confidentiality Agreement shall terminate on , including returning or destroying all Confidential Information and the Closing Datenon-soliciting and non-hiring of employees of the Company.
(dc) Each of the Buyer and the Surviving Company acknowledges and agrees that it shall, from and after the Closing, preserve and keep, or cause to be preserved and kept, all books and records (including Tax records) in respect of the Company and the Company Subsidiaries in the possession of the Buyer or its Affiliates as of the Closing for the longer of (i) any applicable statute of limitations and (ii) a period of seven (7) years from the Closing Date. Each of the Buyer and the Surviving Company shall, upon reasonable notice, subject to any applicable privilege (including, the attorney-client privilege), give the Securityholder Representative and its authorized Representatives access during normal business hours to examine, inspect and copy such books and records for any legitimate purpose in connection with this Agreement (including such matters as are described in Section 7.16(b)); provided, however, that any such access shall be conducted in a manner not to unreasonably interfere with the businesses or operations of the Surviving Company and its Subsidiaries; provided further that (A) neither the Surviving Company nor its Subsidiaries shall be required to disclose any information to the Securityholder Representative and its Representatives, if doing so could (y) violate any agreement or Law to which the Company or any Company Subsidiary is a No party or to which the Company or any Company Subsidiary is subject or (z) result in the waiver of any legal privilege or work product protection of the Company or any Company Subsidiary and (B) the Securityholder Representative and its authorized Representatives shall treat and hold as confidential all information provided or made available by or on behalf of the Buyer, the Company or any Company Subsidiary, or their respective Representatives, pursuant to this Section 7.3(d), and not disclose and refrain from using any such information except as expressly permitted under this Section 7.3(d). Notwithstanding the foregoing or Section 7.3(e), the Securityholder Representative may disclose information in the administration of its duties hereunder to the Securityholder Representative Group or to another Person, provided that such Person is subject to confidentiality restrictions no less restrictive than those set forth in the Confidentiality Agreement; provided, however, that nothing in this sentence shall impose any obligations on the Securityholder Representative with respect to the Securityholder Representative’s disclosure of information to the Surviving Company (or its Affiliates) or their respective members, managers, directors, officers, contractors, agents and employees.
(e) Neither the Securityholder Representative or the Company, on the one hand, nor the Buyer or Merger Sub, on the other hand, will issue or cause the publication of any press release, materials filed with or furnished to the SEC or any stock exchange, release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer or the Securityholder Representative, as applicable, other parties hereto (which consent shall not be unreasonably withheld, conditioned conditioned, delayed, or delayeddenied); provided, however, that nothing herein will prohibit any Party party from issuing or causing publication of any such press release, materials filed with or furnished to the SEC or any stock exchange, release or public announcement to the extent that such disclosure is upon advice of counsel (including in-house counsel) required by LawLaw or stock exchange requirements, in which case the Party party making such determination will, if practicable in the circumstances, use reasonable commercial efforts to allow the Buyer, on the one hand, or the Securityholder Representative and the Company, on the other hand, as applicable, party reasonable time to comment on such release, materials release or announcement in advance of its issuance; provided further .
(d) For a period of three (3) years following the Closing, to the extent permitted by applicable Law, Parent agrees to provide (or cause its Affiliates to provide) the Shareholders’ Representative with reasonable access, at reasonable times during normal business hours and upon reasonable advance notice, and in a manner so as not to interfere unreasonably with the business operations of Parent or the Surviving Corporation, to such books and records and other documents in the possession of Parent or the Surviving Corporation that relate to periods prior to the foregoing shall not restrict disclosures of information made Closing or a Straddle Period to the extent that such access is reasonably required by or the Shareholders’ Representative, on behalf of the Buyer, itself or any Shareholder or any of their respective Affiliates to (i) defend, prosecute, appeal or successorscooperate with any judicial, on arbitral or regulatory proceeding, audit or investigation to which the one handShareholders’ Representative, to any Shareholder, or any of their respective direct Affiliates is a party and indirect Affiliateswhich relates to the Company or its Affiliates or otherwise to the business and affairs of the Company or its Affiliates prior to the Closing, actual (ii) to prepare financial statements or regulatory filings of the Shareholders’ Representative, any Shareholder, or any of their respective Affiliates in respect of periods ending on or prior to the Closing Date, (iii) to comply with the terms of this Agreement, any Transaction Document, any applicable Law or request of any Governmental Authority, (iv) in connection with the determinations in accordance with Section 3.3, or (v) relating the preparation or amendment of any Tax Returns or claims for refund. Parent agrees to (or cause its Affiliates to) retain and potential investors, actual preserve all books and potential financing sources, counsel, accountants, consultants records and all other advisors, on the other hand (so long asdocuments that it or they acquire pursuant to this Agreement, in each casecompliance with all applicable Law, such disclosure has a valid business purpose and is effected in a manner consistent with customary practices for at least six (including with respect to confidentiality))6) years following the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (LIVE VENTURES Inc)
