Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws. (b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time. (c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions. (d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement. (e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 3 contracts
Samples: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the earlier to occur of the Effective TimeTime or the termination of this Agreement in accordance with the terms set forth in Article VII, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and Parent’s Representatives reasonable access during normal access, at reasonable times and in a manner as shall not unreasonably interfere with the business hours upon reasonable prior notice or operations of the Company or any Subsidiary thereof, to the officers, employees and other personnelemployees, accountants, agents, properties, offices and other facilities and to all books, records, contracts and other assets of the Company and its Subsidiaries Subsidiaries, and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide furnish promptly to Parent such other information concerning the business and properties of the Company and its Subsidiaries as Parent may reasonably request from time to time. Neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the protection of attorney-client privilege or contravene any Law (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such jeopardy or contravention). No investigation shall affect the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice representations and warranties contained herein, or limit or otherwise affect the remedies available to ParentParent or Merger Sub pursuant to this Agreement.
(b) The Company shall provide Parent with an unaudited consolidated balance sheet and statement of operations for each month ended following the date hereof through the Effective Date within 30 days of each month’s personnel and records on a basis consistent end.
(c) From the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement in accordance with the terms set forth in Article VII, Parent shall comply with the Company’s access to such personnel reasonable requests for non-public information concerning the business and records prior to the date hereof in connection with the Company’s due diligence review properties of Parent and its Subsidiaries. Neither Parent nor any of its Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the protection of attorney-client privilege or contravene any Law (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in connection with a manner that would not result in such jeopardy or contravention). No investigation shall affect Parent’s representations and warranties contained herein, or limit or otherwise affect the Transactionsremedies available to the Company pursuant to this Agreement.
(d) All information obtained by Parent and the parties hereto pursuant Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality Agreement, dated February 7, 2013, between Parent and the Company (the “Confidentiality Agreement”), which shall survive the termination of this Section 7.03 shall be kept confidential Agreement in accordance with the Confidentiality Agreementterms set forth therein.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Real Goods Solar, Inc.), Merger Agreement (Real Goods Solar, Inc.)
Access to Information; Confidentiality. The Company agrees to (ai) Except as otherwise prohibited by applicable Law, from permit Park Sterling and Park Sterling’s Representatives to visit and inspect or investigate the date properties of this Agreement until the Effective Time, the Company shalland the Company’s Subsidiaries to examine the corporate books, data, files, information, documents, correspondence, records and other materials Park Sterling may reasonably request and (ii) provide Park Sterling with access to the Representatives, vendors and any others having business dealings with the Company or its Subsidiaries for the purpose of such meetings and communications as Park Sterling reasonably desires, including to discuss the affairs, business, operations, condition, finances and accounts of the Company or its Subsidiaries and for integration planning (and the Company shall cause its Subsidiaries tosuch Subsidiaries, provide Representatives and vendors to Parent cooperate with such discussions), all upon reasonable notice and Parent’s Representatives at such reasonable access times and as often as Park Sterling may reasonably request. Any inspection or investigation pursuant to this Section 6.2 shall be conducted during normal business hours upon reasonable prior notice and in such manner as not to interfere unreasonably with the officersconduct of the business of the Company, employees the Bank and other personnelthe Company’s Subsidiaries, agents, properties, offices and other facilities nothing herein shall require any Representative of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent (A) prohibited by applicable Law or (B) that such access or disclosure would result in the cause a loss of attorney-client privilege to the Company or any Subsidiary (provided, that the Company shall make appropriate substitute disclosure arrangements under circumstances where such restrictions apply). No inspection or investigation by Park Sterling (or knowledge acquired or that could have been acquired thereby) shall affect the ability of Park Sterling to rely on the representations and warranties of the Company. The Company agrees to distribute any notices requested by Park Sterling, including any and all notices to employees of the Company or its Subsidiaries in a form approved by Park Sterling and reasonably acceptable to the Company. In addition any communications by the Company or its Subsidiaries with its employees shall be subject to prior review and comment by Park Sterling and none of the Company or any of its Subsidiaries (provided that shall make any promises or commitments to its employees with respect to employment by the Company and its Subsidiaries shall use Company, Park Sterling or any of their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its respective Subsidiaries or to the extent necessary to comply terms and conditions thereof. All information furnished by any Party or any of its Representatives in connection with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company transactions contemplated hereby shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAbe subject to, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company receiving Party shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide each case hold all such information in a manner that does not result confidence in a loss accordance with, the provisions of attorney-client privilege). In order to keep Parent reasonably informed regarding the confidentiality agreement, dated as of January 13, 2014, between Park Sterling and Sandler X’Xxxxx & Partners, L.P. on behalf of the Company’s regulatory relationship , with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues each such as IDEs, clinical trials (whether new or on-going), medical technology and any other receiving Party subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to restrictions as the date hereof in connection with recipient (the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Provident Community Bancshares, Inc.), Merger Agreement (Park Sterling Corp)
Access to Information; Confidentiality. (a) Except as otherwise for any information which (w) if disclosed would constitute a breach of Contract by an Acquired Entity, (x) relates to the negotiation of the Transaction Documents or the Transactions, (y) is prohibited from being disclosed by applicable Law, from or (z) on the date advice of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities legal counsel of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure Sellers would result in the loss of attorney-client privilege of from disclosure; provided that, in the Company or any of its Subsidiaries (provided event that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure restrictions in a manner that does not result in a loss of attorney-client privilege) and foregoing clause (w), (y) or (z) apply, Sellers shall cooperate in good faith to design and implement alternative disclosure arrangements to enable Buyer to evaluate such information without violating such Contract or Law, jeopardizing such privilege or disclosing information that relates to the Company may limit physical access negotiation of the Transaction Documents or the Transactions, Sellers shall cause (A) the First Closing Acquired Entities during the First Closing Interim Period and (B) the Second Closing Acquired Entities during the Second Closing Interim Period to afford to Buyer and its Representatives reasonable access, and with reasonable advance notice, in such manner as to not unreasonably interfere with the normal operation of such Acquired Entities, and so long as permissible under applicable Law and subject to appropriate COVID-19 Measures, to the properties, offices books, Tax Returns, records and appropriate officers and employees of such Acquired Entities, and shall use its commercially reasonable efforts to furnish Buyer and its Representatives with all financial and operating data and other facilities information concerning the affairs of such Acquired Entities that are in the Company possession or control of such Acquired Entities, in each case, as Buyer and its Subsidiaries to Representatives may reasonably request solely for purposes of consummating the extent the Company reasonably determines, in light of COVID-19, transactions contemplated hereby; provided that such access would jeopardize the health and safety shall not include any invasive or intrusive investigations or testing, sampling or analysis of any employee properties, facilities or equipment of such Acquired Entities. All requests for such access shall be made to such Representatives of the Company or its Subsidiaries or Sellers as the Sellers shall designate, who shall be solely responsible for coordinating all such requests and all access permitted hereunder. Prior to the extent First Closing Date, with respect to the Acquired Entities, and prior to the Second Closing Date, with respect to the Second Closing Acquired Entities, none of Buyer, its Affiliates nor their respective Representatives shall contact any of the employees (other than as necessary for Buyer to comply discharge its obligations under Section 6.9), customers, suppliers, distributors, contractors, lenders, agents or parties (or Representatives of any of the foregoing) that have business relationships with applicable Lawssuch Acquired Entities, or any Governmental Authority or Representatives thereof (other than the required filings specified in Section 3.4 or as necessary for Buyer to discharge its obligations under Section 6.4), in connection with the transactions contemplated hereby, whether in person or by telephone, mail or other means of communication, without the prior written consent of the Sellers.
(b) Without limiting All information obtained by Buyer and its Representatives under this Agreement shall be subject to the generality of Confidentiality Agreement. Buyer, its Affiliates and their respective Representatives, as applicable, shall indemnify, defend and hold harmless the foregoingSellers, the Company covenants Acquired Entities, their respective Affiliates and agrees thateach of their respective Representatives from and against all Losses resulting from or relating to the physical access of properties by Buyer, between the date its Affiliates and their respective Representatives under Section 6.2(a). The foregoing indemnification obligation shall survive each Applicable Closing or termination of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective TimeAgreement.
(c) Except From the Applicable Closing Date until the later of the third anniversary of the Applicable Closing Date or, as otherwise prohibited to the Confidential Information provided after the Applicable Closing Date pursuant to Section 6.6, the third anniversary of the date such information is so provided, each Seller will, and will cause its Affiliates and use commercially reasonable efforts to cause its Representatives to, (i) maintain the strict confidentiality of any and all confidential or proprietary information of the applicable Acquired Entities (“Confidential Information”) and (ii) not disclose such Confidential Information to any Person other than any of its Affiliates or Representatives with a need to know such information, except to the extent required by applicable Law (provided that if required by Law, from such Seller agrees, to the date extent legally permissible, to give Buyer prior written notice of such disclosure in sufficient time to permit Buyer to seek a protective order should it so determine). Each Seller shall (y) notify all Persons to whom Confidential Information is disclosed of the confidential nature of the materials disclosed and the provisions of this Agreement until Agreement; and (z) ensure that all Persons to whom the Effective Time, Parent shall, Confidential Information is disclosed keep such information confidential and shall cause its Subsidiaries to, provide do not disclose or divulge such information to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice any Person who is not authorized to Parent’s personnel and records on a basis consistent with the Company’s access to receive such personnel and records prior to the date hereof information as provided in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement6.2(c).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Consolidated Edison Inc), Purchase and Sale Agreement (Crestwood Equity Partners LP)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the terms of any Contract entered into prior to the date hereof or as would be reasonably expected to violate or result in the loss of this Agreement until any attorney-client (or other legal) privilege, during the Effective TimePre-Closing Period, the Company shall, shall (and shall cause its the Company Subsidiaries to), at Parent’s expense: (i) provide to Parent and Parent’s Representatives to the officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, “Representatives”) of Parent reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records thereof thereof, and (including for purposes ii) furnish as promptly as practicable to Parent such information concerning the business, properties, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews the Company and audits to allow the Company Subsidiaries as Parent to be in compliance with or its policies and procedures and any applicable Law at the Effective Time)Representatives may reasonably request; provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent if such access or disclosure (x) is prohibited by applicable Law, the Company shall use reasonable best efforts to provide such access or disclosure in a manner that does not violate Law, (y) is prohibited by an existing Contract, the Company shall use reasonable best efforts to obtain the required consent from the counterparty to such Contract to allow such access or disclosure or (z) would result in the a loss of attorney-client privilege of such privilege, the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure (or as much or it as possible) in a manner that does would not result in a loss of attorney-client such privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries including to the extent the Company reasonably determinesrequested by Parent and if applicable, in light by entering into a customary joint defense agreement that would alleviate such loss of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsprivilege.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Parent, Merger Sub or its or their Representatives pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with the confidentiality agreement, dated April 21, 2015 (the “Confidentiality Agreement”), between Parent and the Company.
(ec) No investigation pursuant to this Section 7.03 6.02 shall affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Danaher Corp /De/), Merger Agreement (Pall Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited To the extent not restricted by third-party agreement or applicable Law, from the date of this Agreement until the Effective Timelaw, the Company shall, and shall cause its Subsidiaries tosubject to any necessary third-party approvals, provide to allow the Parent and Parent’s Representatives its officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and other advisors reasonable access during normal business hours upon reasonable prior notice hours, at Parent’s sole risk and expense, to the officers, employees and other personnel, agentsall facilities, properties, offices personnel, books and other facilities records of the Company and the Company Subsidiaries. Parent agrees to conduct its investigation in a manner that does not interfere unreasonably with the Company’s or the Company Subsidiaries’ operations and with the prompt and timely discharge by the employees of the Company and the Company Subsidiaries of their duties. Parent agrees to indemnify and hold the Company and the Company Subsidiaries harmless from any and all claims and liabilities, including costs and expenses, for injury to or death of any representative of the Parent Parties and for any loss of, damage to or destruction of any property owned by the Company or the Company Subsidiaries or others (including claims or liabilities for loss of use of any property) resulting directly or indirectly from the action or inaction of any of the Parent Parties’ representatives during any visit to the books and records thereof (including for purposes business or property sites of conducting regulatory compliance reviews and audits the Company or the Company Subsidiaries prior to allow Parent the completion of the Merger, whether pursuant to be in compliance with its policies and procedures and any applicable Law at this Section 5.2 or otherwise. Notwithstanding the Effective Time); providedforegoing, however, that (x) the Company shall not be required to provide access to or otherwise disclose any information if such information to the extent is subject to, or such access or disclosure would result in the loss of jeopardize, attorney-client privilege, work product doctrine or other applicable privilege concerning legal proceedings or governmental investigations; provided, however, that the Company shall use its reasonable best efforts to (A) obtain the required consent of any third party to provide such access or disclosure, (B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company or (C) enter into a joint defense agreement or implement such other techniques if the Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable law or jeopardizing such privilege. Neither Parent nor any of its officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors or other advisors shall conduct any environmental testing or sampling on any of the business or property sites of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access prior to the properties, offices and other facilities completion of the Company and its Subsidiaries to Merger without the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee prior written consent of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsCompany, which consent shall not be unreasonably withheld.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All Any information obtained by the parties hereto pursuant to Parent Parties or the Company or their respective directors, officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and other advisors under this Section 7.03 5.2 shall be kept confidential subject to the confidentiality and use restrictions contained in accordance with that certain letter agreement between the Company and Parent dated May 21, 2010 (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Expressjet Holdings Inc), Merger Agreement (Skywest Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawLaw or as would be reasonably expected to violate or result in the loss or waiver of any attorney-client (or other legal) privilege, from during the date of this Agreement until the Effective TimePre-Closing Period, the Company shall, shall (and shall cause its the Company Subsidiaries to), under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company or any Company Subsidiary: (i) provide to Parent and Parent’s its Representatives reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records records, work papers and other documents thereof (including for purposes up-to-date employee census documents), and (ii) furnish as promptly as practicable to Parent such information concerning the business, properties, Company Products, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews the Company and audits the Company Subsidiaries as Parent or its Representatives may reasonably request; provided that nothing herein shall require the Company to allow Parent (or cause its Company Subsidiaries to) afford such access or furnish such information to be that extent that the Company’s outside legal counsel advising it in compliance writing that doing so would (A) potentially contravene applicable Law, (B) jeopardize any attorney-client (or other legal) privilege, or (C) require the disclosure of materials provided to the Company Board or resolutions or minutes of the Company Board, in each case, related to or in connection with its policies and procedures and any applicable Law at the Effective Time)Company Board’s consideration of the Merger; provided, howeverfurther, that that, in the case of the foregoing clause (x) A), the Company shall not be required use reasonable best efforts to provide access to or disclose any such information to the extent such access or disclosure would result in a manner that does not contravene applicable Law, in the loss of attorney-client privilege case of the Company or any of its Subsidiaries foregoing clause (provided that B), the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does would not result in a loss of attorney-client such privilege) , including to the extent requested by Parent and if applicable, by arrangement of appropriate clean room procedures, redaction of text from documents or entry into a customary joint defense agreement that would alleviate such loss of privilege, and, in the case of the foregoing clause (y) C), the Company may limit physical shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not result in the disclosure of materials provided to the properties, offices and other facilities Company Board or resolutions or minutes of the Company and its Subsidiaries Board, in each case, related to or in connection with the Company Board’s consideration of the Merger, including if applicable, by redacting any portions of such materials, minutes or resolutions related to the extent Company Board’s consideration of the Merger where such materials, minutes or resolutions include matters that are not related to the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee Board’s consideration of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsMerger.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Parent, Merger Sub or their respective Representatives pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement.
. Prior to the Closing, each of Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact or otherwise communicate with the employees (eother than members of the Company’s senior leadership team), customers, suppliers or distributors of the Company and any Company Subsidiaries regarding the business of the Company, this Agreement or the Transactions without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; provided that nothing in this (b) No investigation pursuant shall prevent Parent and its Affiliates from operating in the ordinary course of business, including contacting or otherwise communicating in the ordinary course of business with such employees, customers, suppliers or distributors. The Company and Parent hereby agree, in accordance with Section 20 of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed to have been, and hereby is, amended by the provisions of this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.6.02
Appears in 2 contracts
Samples: Merger Agreement (Nordson Corp), Merger Agreement (Nordson Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to applicable Law, and upon reasonable prior written notice, the Company Company, on the one hand, and Parent, on the other hand, shall, and each shall cause its each of their respective Subsidiaries to, provide afford to Parent the other parties and Parent’s to the other parties’ respective Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees all of their and other personnel, agents, their respective Subsidiaries’ properties, offices offices, personnel and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes and, during such period, the Company, on the one hand, and Parent, on the other hand, shall, and each shall cause each of conducting regulatory compliance reviews their respective Subsidiaries to, furnish promptly to the other parties all financial, operating and audits to allow Parent to be in compliance with other data and information concerning its policies business, properties and procedures and any applicable Law at the Effective Time)personnel as each may reasonably request; provided, however, that (x) the Company any such access shall not interfere unreasonably with the business or operations of the party granting access or otherwise result in any unreasonable interference with the prompt and timely discharge by such party’s employees of their normal duties. Neither the Company, nor Parent, nor any of their respective Subsidiaries shall be required to (i) provide access to or to disclose any such information to the extent where such access or disclosure would result in reasonably be expected to jeopardize the loss of attorney-client client, attorney work product or other legal privilege of the Company or any of its Subsidiaries disclosing party (provided that the Company and its Subsidiaries disclosing party shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does would not result in a loss of reasonably be expected to jeopardize the attorney-client client, attorney work product or other legal privilege) and (y) the Company may limit physical access or contravene any Law, legal duty or binding agreement entered into prior to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, provided that the Company disclosing party shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not be required in violation of any Law, legal duty or agreement) or (ii) provide access to provide or to disclose such portions of documents or information relating to the extent providing pricing or other matters that are highly sensitive where such information would access or disclosure is reasonably likely to result in antitrust difficulties for the loss of attorney-client privilege of the Company disclosing party or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege)Affiliates. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in No investigation under this Section 7.03(b) is intended to give Parent, directly 6.02 or indirectly, the right to control or direct the FDA regulatory strategy otherwise shall affect any of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date representations and warranties of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Company OP, on the one hand, or of Parent’s personnel , Parent OP and records Merger Sub, on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representationother hand, warranty, covenant or agreement contained in this Agreement of any party hereto or any condition to the obligations of the parties heretounder this Agreement. All information exchanged pursuant to this Section 6.02 shall be subject to the non-disclosure agreement, dated as of June 8, 2021, between the Company and Parent (or one of its upstream Affiliates) (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawLaw or as would be reasonably expected to violate or result in the loss or waiver of any attorney-client (or other legal) privilege, from during the date of this Agreement until the Effective TimePre-Closing Period, the Company shall, shall (and shall cause its the Company Subsidiaries to), under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company or any Company Subsidiary: (i) provide to Parent and Parent’s its Representatives reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records records, work papers and other documents thereof (including for purposes up-to-date employee census documents), and (ii) furnish as promptly as practicable to Parent such information concerning the business, properties, Company Products, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews the Company and audits the Company Subsidiaries as Parent or its Representatives may reasonably request; provided that nothing herein shall require the Company to allow Parent (or cause its Company Subsidiaries to) afford such access or furnish such information to be that extent that the Company’s outside legal counsel advising it in compliance writing that doing so would (A) potentially contravene applicable Law, (B) jeopardize any attorney-client (or other legal) privilege, or (C) require the disclosure of materials provided to the Company Board or resolutions or minutes of the Company Board, in each case, related to or in connection with its policies and procedures and any applicable Law at the Effective Time)Company Board’s consideration of the Merger; provided, howeverfurther, that that, in the case of the foregoing clause (x) A), the Company shall not be required use reasonable best efforts to provide access to or disclose any such information to the extent such access or disclosure would result in a manner that does not contravene applicable Law, in the loss of attorney-client privilege case of the Company or any of its Subsidiaries foregoing clause (provided that B), the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does would not result in a loss of attorney-client such privilege) , including to the extent requested by Parent and if applicable, by arrangement of appropriate clean room procedures, redaction of text from documents or entry into a customary joint defense agreement that would alleviate such loss of privilege, and, in the case of the foregoing clause (y) C), the Company may limit physical shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not result in the disclosure of materials provided to the properties, offices and other facilities Company Board or resolutions or minutes of the Company and its Subsidiaries Board, in each case, related to or in connection with the Company Board’s consideration of the Merger, including if applicable, by redacting any portions of such materials, minutes or resolutions related to the extent Company Board’s consideration of the Merger where such materials, minutes or resolutions include matters that are not related to the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee Board’s consideration of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsMerger.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Parent, Merger Sub or their respective Representatives pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition . Prior to the obligations Closing, each of the parties hereto.Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact or
Appears in 2 contracts
Samples: Merger Agreement (Nordson Corp), Merger Agreement (Atrion Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to applicable Law, and upon reasonable prior written notice, the Company Company, on the one hand, and Parent, on the other hand, shall, and each shall cause its each of their respective Subsidiaries to, provide afford to Parent the other parties and Parent’s to the other parties’ respective Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees all of their and other personnel, agents, their respective Subsidiaries’ properties, offices offices, personnel and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes and, during such period, the Company, on the one hand, and Parent, on the other hand, shall, and each shall cause each of conducting regulatory compliance reviews their respective Subsidiaries to, furnish promptly to the other parties all financial, operating and audits to allow Parent to be in compliance with other data and information concerning its policies business, properties and procedures and any applicable Law at the Effective Time)personnel as each may reasonably request; provided, however, that (x) the Company any such access shall not interfere unreasonably with the business or operations of the party granting access or otherwise result in any unreasonable interference with the prompt and timely discharge by such party’s employees of their normal duties. Neither the Company, nor Parent, nor any of their respective Subsidiaries shall be required to (i) provide access to or to disclose any such information to the extent where such access or disclosure would result in reasonably be expected to jeopardize the loss of attorney-client client, attorney work product or other legal privilege of the Company or any of its Subsidiaries disclosing party (provided that the Company and its Subsidiaries disclosing party shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does would not result in a loss of reasonably be expected to jeopardize the attorney-client client, attorney work product or other legal privilege) and (y) the Company may limit physical access or contravene any Law, legal duty or binding agreement entered into prior to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, provided that the Company disclosing party shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not be required in violation of any Law, legal duty or agreement) or (ii) provide access to provide or to disclose such portions of documents or information relating to the extent providing pricing or other matters that are highly sensitive where such information would access or disclosure is reasonably likely to result in antitrust difficulties for the loss of attorney-client privilege of the Company disclosing party or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege)Affiliates. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in No investigation under this Section 7.03(b) is intended to give Parent, directly 6.02 or indirectly, the right to control or direct the FDA regulatory strategy otherwise shall affect any of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date representations and warranties of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Company OP, on the one hand, or of Parent’s personnel , Parent OP, OP Merger Sub and records IRT LP LLC, on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representationother hand, warranty, covenant or agreement contained in this Agreement of any party hereto or any condition to the obligations of the parties heretounder this Agreement. All information exchanged pursuant to this Section 6.02 shall be subject to the non-disclosure agreement, dated as of November 5, 2014, between the Company and Parent (or one of its upstream Affiliates) (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Independence Realty Trust, Inc), Merger Agreement (Trade Street Residential, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until to the Effective Time, the Company AirTran shall, and shall cause its Subsidiaries Representatives to, provide to Parent permit Southwest and ParentSouthwest’s Representatives to have reasonable access during normal business hours upon to AirTran’s Representatives and the facilities, books, records, Contracts, and documents of or pertaining to AirTran or the AirTran Subsidiaries within AirTran’s possession or control or over which AirTran may, with reasonable prior notice to the officersbest efforts, employees obtain possession or control, and shall furnish Southwest and Merger Sub with all financial, operating, and other personneldata and information as Southwest or Merger Sub, agentsthrough its Representatives, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)may reasonably request; provided, however, that access to competitively sensitive marketing or fare or route planning information shall only be provided to the extent that such access would not violate applicable Law as determined in good faith by AirTran (after consultation with outside legal counsel); and provided further, that the foregoing shall not require AirTran (i) to permit any inspection, or to disclose any information, that (x) in the Company good faith judgment of AirTran would result in the disclosure of any trade secrets of third Persons to whom AirTran or any AirTran Subsidiary owes a duty of confidentiality or (y) violate any of AirTran’s obligations with respect to confidentiality if in each such case AirTran shall not be required have promptly used reasonable best efforts to provide access obtain the consent of such third Person to such inspection or disclosure, (ii) to disclose any privileged information of AirTran or any AirTran Subsidiary if such information to the extent such access or disclosure would reasonably be likely to result in the loss of attorney-client privilege such privileged information, or (iii) to permit invasive testing of the Company any of AirTran’s or any AirTran Subsidiary’s real property. In no event shall AirTran be required to supply to Southwest, or Southwest’s officers, employees, accountants, counsel, or other representatives, any information relating to indications of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access interest from, or disclosure in a manner that does not result in a loss discussions with, any other potential acquirors of attorney-client privilege) and (y) the Company may limit physical access to the propertiesAirTran, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or except to the extent necessary or advisable for use in the Proxy Statement and Form S-4 or as required under Section 5.6. Any investigation pursuant to comply this Section 6.3(a) shall be conducted in a manner which will not interfere unreasonably with applicable Lawsthe conduct of the business of the other party. All information exchanged pursuant to this Section 6.3(a) shall be subject to the confidentiality agreement dated June 22, 2010 between AirTran and Southwest (the “Confidentiality Agreement”).
(b) Without limiting In the generality event of the foregoing, the Company covenants and agrees that, between the date termination of this Agreement and the Effective Timein accordance with ARTICLE VIII, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAparties shall, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order cause their respective Representatives to, return promptly every document furnished to keep Parent reasonably informed regarding them by the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with other party or parties or any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy Representative of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof other party in connection with the Company’s due diligence review of Parent Merger and its Subsidiaries all copies thereof in connection with the Transactionstheir possession, and cause any other parties to whom such documents may have been furnished promptly to return such documents and all copies thereof.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Airtran Holdings Inc), Agreement and Plan of Merger (Southwest Airlines Co)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the earlier to occur of the Effective TimeTime or the termination of this Agreement, subject to the Company shallrestrictions and/or consent obligations of any third-party agreement or Applicable Law, XETA shall allow the Parent Parties and shall cause its Subsidiaries totheir officers, provide to Parent employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and Parent’s Representatives other advisors reasonable access during normal business hours upon reasonable prior notice hours, at the Parent Parties’ sole risk and expense, to the officers, employees and other personnel, agentsall facilities, properties, offices and other facilities of the Company and its Subsidiaries and to the personnel, books and records thereof (including for purposes of conducting regulatory compliance reviews XETA and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)subsidiaries, as applicable; provided, howeverthat no investigation pursuant to this Section 5.2 shall affect any representation or warranty given by XETA hereunder; and provided, further, that notwithstanding the provision of information by XETA or investigation by the Parent Parties, XETA shall not be deemed to make any representation or warranty except as expressly set forth in this Agreement. The Parent Parties agree to conduct their investigation in a manner that does not interfere unreasonably with the operations of XETA and its subsidiaries or with the prompt and timely discharge of the duties of XETA’s employees. The Parent Parties agree to indemnify and hold XETA and its subsidiaries harmless from any and all claims and liabilities, including costs and expenses for loss, injury to or death of any representative of the Parent Parties, and any loss, damage to or destruction of any property owned by XETA or its subsidiaries or others (xincluding claims or liabilities for loss of use of any property) to the Company extent resulting directly or indirectly from the action or inaction of any of the Parent Parties’ representatives during any visit to the business or property sites of XETA or its subsidiaries prior to the completion of the Merger, whether pursuant to this Section 5.2 or otherwise. XETA shall furnish as promptly as practicable to Parent an unaudited monthly consolidated balance sheet of XETA and its subsidiaries for the month then ended and related consolidated statements of earnings, cash flows and shareholders’ equity (which XETA will use reasonable best efforts to furnish no later than ten business days after the end of each month). Notwithstanding the foregoing, XETA shall not be required to provide access to or otherwise disclose any information if such information to the extent is subject to, or such access or disclosure would result in jeopardize, the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and , work product doctrine or other applicable privilege concerning legal proceedings or governmental investigations or which it is required to keep confidential by reason of contract or agreement with third parties or by reason of Applicable Law (y) in which case the Company may limit physical access parties will make appropriate substitute disclosure arrangements, if such arrangements can be made by the parties using their reasonable best efforts). None of the Parent Parties or any of their officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors or other advisors shall conduct any environmental testing or sampling on any of the business or property sites of XETA or its subsidiaries prior to the properties, offices and other facilities completion of the Company and its Subsidiaries to Merger without the extent the Company reasonably determines, in light prior written consent of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsXETA.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All Any information obtained by the parties hereto pursuant to Parent or Sub or their respective directors, officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and other advisors under this Section 7.03 5.2 shall be kept confidential subject to the confidentiality and use restrictions contained in accordance with that certain letter agreement between XETA and Parent dated December 3, 2010 (the “Confidentiality Agreement”), as if Sub were made party thereto.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (PAETEC Holding Corp.), Merger Agreement (Xeta Technologies Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its (and its Subsidiaries') properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by any of them pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by any of them with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, agentsoperations, properties, offices prospects, personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, (A) all financial records, ledgers, workpapers and other facilities sources of financial information processed or controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and the Company and its Subsidiaries taken as a whole and certifying financial statements and financial information and (B) all other information relating to the books Company, its Subsidiaries and records thereof Stockholders that VIALOG or its Representatives requires, in either case for inclusion in or in support of the Registration Statement, and (including iii) such other information concerning any of the foregoing as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for purposes the benefit of conducting regulatory compliance reviews the parties hereto, VIALOG will hold and audits will use commercially reasonable efforts to allow Parent cause the Representatives of VIALOG to be in compliance with its policies hold, and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required will hold and will use commercially reasonable efforts to provide access to or disclose any such information to cause the extent such access or disclosure would result in the loss of attorney-client privilege Representatives of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determineshold, in light of COVID-19, that such access would jeopardize the health strict confidence all non-public documents and safety of any employee of the Company information furnished (whether prior or its Subsidiaries subsequent hereto) to VIALOG or to the extent necessary to comply with applicable Laws.
(b) Without limiting Company, as the generality of the foregoingcase may be, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementMerger and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) No investigation pursuant to this Section 7.03 shall affect any representationThe Company and VIALOG acknowledge that the Company and VIALOG executed one or more Confidential Disclosure Agreements (collectively, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto."Confidentiality
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Vialog Corp), Agreement and Plan of Reorganization (Vialog Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof to the Effective Time or the earlier termination of this Agreement until the Effective TimeAgreement, the Company upon reasonable prior written notice, BioLite shall, and shall use commercially reasonable efforts to cause its Subsidiaries officers, directors and employees to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to afford the officers, employees employees, auditors and other personnelauthorized representatives of Parent and BioKey reasonable access, agentsconsistent with applicable Law, at all reasonable times to its officers, employees, properties, offices offices, plants and other facilities of the Company and its Subsidiaries and to the all books and records thereof (including for purposes of conducting regulatory compliance reviews BioLite and audits its Subsidiaries, and shall furnish Parent and BioKey with all financial, operating and other data and information as Parent and BioKey, through their respective officers, employees or authorized representatives, may from time to allow Parent time reasonably request in writing. Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to be in compliance interfere unreasonably with the business or operations of BioLite and its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company Subsidiaries. BioLite shall not be required to provide access to or to disclose any such information to the extent where such access or disclosure would result contravene any Law. Each of Parent, the Merger Subs and BioKey will hold and treat and will cause their respective officers, employees, auditors and other authorized representatives to hold and treat in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company confidence all documents and information concerning BioLite and its Subsidiaries shall use their reasonable best efforts furnished to allow for such access Parent, Merger Subs or disclosure BioKey in a manner that does not result in a loss of attorney-client privilege) and (y) connection with the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawstransactions contemplated by this Agreement.
(b) Without limiting From the generality date hereof to the Effective Time or the earlier termination of this Agreement, upon reasonable prior written notice, BioKey shall, and shall use commercially reasonable efforts to cause its officers, directors and employees to, afford the officers, employees, auditors and other authorized representatives of Parent and BioLite reasonable access, consistent with applicable Law, at all reasonable times to its officers, employees, properties, offices, plants and other facilities and to all books and records of BioKey and its Subsidiaries, and shall furnish Parent and BioLite with all financial, operating and other data and information as Parent and BioLite, through their respective officers, employees or authorized representatives, may from time to time reasonably request in writing. Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the Company covenants business or operations of BioKey and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company its Subsidiaries. BioKey shall not be required to provide access to or to disclose information where such access or disclosure would contravene any Law. Each of Parent, the Merger Subs and BioLite will hold and treat and will cause their respective officers, employees, auditors and other authorized representatives to hold and treat in confidence all documents and information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company concerning BioKey and its Subsidiaries shall use their reasonable best efforts furnished to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly Merger Subs or indirectly, BioLite in connection with the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timetransactions contemplated by this Agreement.
(c) Except as otherwise prohibited by applicable Law, from From the date hereof to the Effective Time or the earlier termination of this Agreement until Agreement, upon reasonable prior written notice, the Effective Time, Parent shall, and shall use commercially reasonable efforts to cause its Subsidiaries officers, directors and employees to, provide afford the officers, employees, auditors and other authorized representatives of BioLite and BioKey reasonable access, consistent with applicable Law, at all reasonable times to the Company its officers, employees, properties, offices, plants and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice other facilities and to Parent’s personnel all books and records on of the Parent and its Subsidiaries, and shall furnish BioLite and BioKey with all financial, operating and other data and information as BioLite and BioKey, through their respective officers, employees or authorized representatives, may from time to time reasonably request in writing. Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a basis consistent manner as not to interfere unreasonably with the Company’s business or operations of the Parent and its Subsidiaries. The Parent shall not be required to provide access to or to disclose information where such personnel access or disclosure would contravene any Law. BioLite and records prior BioKey will hold and treat and will cause their respective officers, employees, auditors and other authorized representatives to hold and treat in confidence all documents and information concerning the date hereof Parent and Merger Subs and their respective Subsidiaries furnished to BioLite and BioKey in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained transactions contemplated by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from during the date of this Agreement until the Effective TimePre-Closing Period and upon reasonable prior notice, the Company shall, and shall cause its each of the Company Subsidiaries to, provide afford to Parent and Parent’s its Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, all their respective properties, offices books, contracts, commitments, personnel and other facilities records and, during the Pre-Closing Period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly to Parent (a) a copy of each report, schedule, registration statement and its Subsidiaries and other document filed by it during such period pursuant to the books requirements of Federal or state securities Laws other than those publicly available in the SEC’s XXXXX (or successor) system; and records thereof (including for purposes of conducting regulatory compliance reviews b) all other information concerning its business, properties and audits to allow personnel as Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)may reasonably request; provided, however, that (xi) the Company shall not be required to provide access to may withhold any document or disclose any such information that (A) is subject to the extent such access or disclosure would result terms of a confidentiality agreement with a third party in the loss of attorney-client privilege effect as of the Company or any date of its Subsidiaries this Agreement (provided that the Company and its Subsidiaries shall use their its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure); or (B) is subject to any attorney-client, attorney work product or other similar privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of such attorney-client client, attorney work product or other similar privilege) ); and (yii) if, in the reasonable judgment of the Company, any Law (including antitrust Laws) applicable to the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of requires the Company or its Subsidiaries Affiliates to restrict or prohibit access to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoingany such properties or information, the Company covenants and agrees thator its Affiliates may so restrict or prohibit such access, including by designating such information as “Clean Team Only” or “Outside Counsel Only” pursuant to a customary Clean Team Confidentiality Agreement agreed between the date of this Agreement and parties. If any material is withheld by the Effective TimeCompany pursuant to the proviso to the preceding sentence, the Company shall keep Parent reasonably informed inform Xxxxxx as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, general nature of what is being withheld and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide enter into an alternative arrangement, including a “clean-team” agreement, pursuant to which such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues may be shared without violating such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) . All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.5 shall be kept confidential in accordance with subject to the Mutual Confidential Disclosure Agreement between Parent and the Company and dated as of August 17, 2023, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Markforged Holding Corp), Merger Agreement (Nano Dimension Ltd.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from and after the date of this Agreement until the earlier of the Effective TimeTime and the termination of this Agreement in accordance with its terms, the Company shallwill, and shall will cause its Subsidiaries to, provide use commercially reasonable efforts, upon reasonable advance notice, and subject to applicable governmental restrictions and recommendations, to (i) give Parent and Parent’s Merger Sub and their respective Representatives reasonable access during normal business hours upon reasonable prior notice (under the supervision of appropriate Company personnel and in a manner that does not unreasonably interfere with normal business operations of the Company) to the officersrelevant employees, employees Representatives, assets and other personnelfacilities and to relevant books, agents, properties, offices contracts and other facilities records of the Company and its Subsidiaries Subsidiaries, (ii) permit Parent and Merger Sub to make such non-invasive inspections as they may reasonably request, (iii) furnish Parent and Merger Sub with such financial and operating data and other information with respect to the books business, properties, and records thereof (including for purposes personnel of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required as Parent or Merger Sub may from time to provide access to time reasonably request, and (iv) facilitate site visits by Parent or disclose any such information to the extent such access or disclosure would result in the loss of attorneyits Representatives at any facility of a third-client privilege party contract manufacturer of the Company or any of its Subsidiaries (provided Subsidiaries; provided, that any such access will be afforded and any such information will be furnished at Parent’s expense; provided, further, that the Company and its Subsidiaries shall use their purpose of any such access, in the case of clause (i), or any such request, in the case of clauses (ii), (iii) or (iv), will be limited to reasonable best efforts to allow for such access business purposes, including the planning of any restructuring, the post-Closing operations or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities integration of the Company Company, its Subsidiaries, and its Subsidiaries to their respective businesses, on the extent one hand, with Parent, Parent’s Subsidiaries, and their respective businesses, on the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsother hand.
(b) Without limiting Information obtained by Parent or Merger Sub pursuant to Section 5.2(a) will constitute “Confidential Information” under the generality of the foregoing, the Company covenants and agrees that, between the date of this Confidentiality Agreement and the Effective Time, the Company shall keep Parent reasonably informed as will be subject to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies provisions of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation , with such Confidentiality Agreement hereby amended to limit the permitted use of any information supplied pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition 5.2(a) to the obligations of the parties heretopurpose specified herein.
Appears in 2 contracts
Samples: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, During the period from the date of this Agreement until through the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Article 8, the Company shall, Stewardship will permit and shall will cause its Subsidiaries to, provide Stewardship Bank to Parent and Parent’s Representatives reasonable permit Columbia full access during normal business hours upon reasonable prior notice and during reasonable business hours to the properties of such Stewardship Entities, and will disclose and make available (together with the right to copy) to Columbia and to the internal auditors, loan review officers, employees employees, attorneys, accountants and other personnelrepresentatives of Columbia all books, agentspapers and records relating to the assets, stock, properties, offices operations, obligations and liabilities of the Stewardship Entities, including all books of account (including the general ledgers), Tax records, minute books of directors’ and shareholders’ meetings, organizational documents, bylaws, Contracts, filings with any Regulatory Authority, accountants’ work papers, litigation files (including legal research memoranda), documents relating to assets and title thereto (including abstracts, title insurance policies, surveys, environmental reports, opinions of title and other facilities information relating to the real and personal property), Plans affecting employees, securities transfer records and shareholder lists, and any books, papers and records relating to any assets, business activities or prospects in which Columbia may have a reasonable interest, including its interest in planning for integration and transition with respect to the businesses of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)Stewardship Entities; provided, however, that (xi) the Company shall not be required foregoing rights granted to provide access to Columbia will in no way affect the nature or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege scope of the Company representations, warranties and covenants of Stewardship set forth herein, and (ii) Stewardship will be permitted to keep confidential any information relating to legal matters, regulatory matters or the transactions contemplated by this Agreement that Stewardship reasonably believes is subject to legal privilege or other legal protection that would be compromised by disclosure to Columbia. In addition, Stewardship will instruct the officers, employees, counsel and accountants of each of the Stewardship Entities to be reasonably available for, and respond to any questions of, such Columbia representatives during reasonable business hours and upon reasonable prior notice by Columbia to such individuals, and to cooperate fully with Columbia in planning for the integration of its Subsidiaries (provided that the Company businesses of the Stewardship Entities with the business of Columbia and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsAffiliates.
(b) Without limiting the generality Any confidential information or trade secrets of each of the foregoingStewardship Entities received by Columbia, or its Representatives in connection with the Company covenants Merger or the other transactions contemplated hereby will be treated confidentially and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as held in confidence pursuant to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAStewardship NDA, and any correspondence, memoranda, records, copies, documents and electronic or other regulatory issues under consideration for presentation media of any kind containing either such confidential information or trade secrets or both will be destroyed by Columbia or, at Stewardship’s request, returned to FDA, including IDEs, clinical trials (whether new Stewardship if this Agreement is terminated as provided in Article 8. Such information will not be used by Columbia or on-going)its agents to the detriment of the Stewardship Entities, and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not will at all times be required to provide such information to the extent providing such information would result maintained and held in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship compliance with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b5.3(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to until the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from In the date of event that this Agreement until the Effective Timeis terminated, Parent shallneither Columbia nor Stewardship will disclose, and shall cause its Subsidiaries to, provide except as required by Law or pursuant to the Company and request of a Governmental Entity, the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with or reason for such termination, without the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations consent of the parties heretoother party.
Appears in 2 contracts
Samples: Merger Agreement (Columbia Financial, Inc.), Merger Agreement (Stewardship Financial Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawUpon reasonable notice, from the date of this Agreement until the Effective Time, the Company NYMEX Holdings shall, and shall cause its the NYMEX Holdings Subsidiaries to, provide afford to Parent the officers, directors, employees, accountants, counsel, financial advisors, consultants, financing sources and Parent’s Representatives reasonable other advisors or representatives (collectively, “Representatives”) of CME Group access during normal business hours upon reasonable prior notice hours, and without undue disruption of normal business activity, to all of NYMEX Holdings’ and the Subsidiaries’ properties, books, records, contracts, commitments and personnel and shall furnish, and shall cause to be furnished, as promptly as practicable to CME Group (i) a copy of each material report, schedule and other document filed, furnished, published, announced or received by it during such period pursuant to the officers, employees requirements of federal or state securities laws or a Governmental Entity or Self-Regulatory Organization and (ii) all other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and information with respect to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)NYMEX Holdings as CME Group may reasonably request; provided, however, that (x) NYMEX Holdings may restrict the Company shall not be required to provide foregoing access to or disclose any such information to the extent such access required by applicable Law; and provided, further, that the foregoing shall not require NYMEX Holdings to permit any inspection, or disclosure to disclose any information, that in the reasonable judgment of NYMEX Holdings would result in the loss waiver of any attorney-client privilege or the disclosure of the Company any trade secrets of third parties or violate any of its Subsidiaries (provided that the Company and its Subsidiaries obligations with respect to confidentiality if NYMEX Holdings shall use their have used reasonable best efforts to allow for obtain the consent of such access third party to such inspection or disclosure in a manner that does not result in a loss disclosure. NYMEX Holdings shall keep CME Group reasonably informed from time to time as to status and developments regarding any audit, investigation, claim, suit or other proceeding (if any) with respect to Taxes and provide to CME Group, when available and prior to filing, drafts of attorney-client privilege) any income Tax Returns relating to NYMEX Holdings or any NYMEX Holdings Subsidiary. NYMEX Holdings shall, and shall cause the NYMEX Holdings Subsidiaries to, reasonably cooperate with CME Group to provide such information (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent in NYMEX Holdings’ or any NYMEX Holdings Subsidiary’s possession or control) or customary affidavits as may be reasonably necessary for the Company reasonably determinesissuance, in light at CME Group’s sole cost, of COVID-19an ALTA title policy at Closing, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or subject, however, to the extent necessary to comply with applicable Lawsfacts and circumstances existing at the time of delivery of such information or affidavits, as the case may be.
(b) Without limiting Upon reasonable notice, CME Group shall, and shall cause the generality CME Group Subsidiaries to, afford to the Representatives of the foregoingNYMEX Holdings access during normal business hours, the Company covenants and agrees thatwithout undue disruption of normal business activity, between the date of this Agreement to CME Group’s senior financial management personnel to receive periodic updates on financial information regarding CME Group and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to ParentCME Group Subsidiaries; provided, that CME Group may restrict the Company shall not be required to provide such information foregoing access to the extent providing such information required by applicable Law; and provided, further, that the foregoing shall not require CME Group to permit any inspection, or to disclose any information, that in the reasonable judgment of CME Group would result in the loss disclosure of attorney-client privilege any trade secrets of the Company third parties or violate any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA obligations with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues confidentiality if CME Group shall have used commercially reasonable efforts to obtain the consent of such as IDEs, clinical trials (whether new third party to such inspection or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timedisclosure.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto furnished pursuant to this Section 7.03 6.4 shall be kept confidential in accordance with subject to the confidentiality agreement, dated as of January 7, 2008, between NYMEX Holdings and CME Group (the “Confidentiality Agreement.
(e) ”). No investigation pursuant to this Section 7.03 6.4 shall affect any representationthe representations, warranty, covenant warranties or agreement in this Agreement of any party hereto or any condition conditions to the obligations of the parties heretoParties contained herein.
Appears in 2 contracts
Samples: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof through the Closing Date, upon reasonable notice and subject to applicable Laws relating to the exchange of this Agreement until the Effective Timeinformation, the Company Holdings LP shall, and shall use its reasonable efforts to cause each of the Southcross Companies to afford to the AMID Entities and their Representatives (including its Subsidiaries to, provide to Parent Financing Sources and Parent’s Representatives their legal and tax advisors and accountants) reasonable access during normal business hours upon reasonable prior notice to the officers(and, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, books and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectlyrecords, the right to control or direct the FDA regulatory strategy copy) to all of the Company Southcross Companies’ properties, books, contracts, records and correspondence (in each case, whether in physical or electronic form), officers, employees, accounting firms, counsel, financial advisors and other Representatives. None of the AMID Entities’ access hereunder shall include the collection or analysis of samples, or any invasive or subsurface investigation of property without Holdings LP’s prior written consent, which consent may be withheld or conditioned in Holdings LP’s sole discretion. Except for disclosures permitted by the terms of the Confidentiality Agreement, each party and its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, Representatives shall hold information received from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto other party pursuant to this Section 7.03 shall be kept confidential 5.5 in confidence in accordance with the terms of the Confidentiality Agreement.
(eb) No This Section 5.5 shall not require Holdings LP to permit any access, or to disclose any information, that in the reasonable, good faith judgment (after consultation with counsel, which may be in-house counsel) of Holdings LP would reasonably be expected to result in (i) any violation of any contract or applicable Law to which Holdings LP or any of its Affiliates, including the Southcross Companies, is a party or is subject or cause any privilege (including attorney-client privilege) that, Holdings LP or its Affiliates would be entitled to assert to be undermined with respect to such information and such undermining of such privilege could in such party’s good faith judgment (after consultation with counsel, which may be in-house counsel) adversely affect in any material respect such party’s position in any pending or, what such party believes in good faith (after consultation with counsel, which may be in-house counsel) could be, future litigation or (ii) if Holdings LP or its Affiliates, on the one hand, and AMID or any of its Subsidiaries, on the other hand, are adverse parties in a litigation, such information being reasonably pertinent thereto.
(c) Any inspection or investigation conducted by any of the AMID Entities or its Representatives prior to the Closing will be conducted in accordance with applicable Laws, including any applicable Environmental Laws, and in such manner as not to interfere unreasonably with the business or operations of the Southcross Companies. Holdings LP (and its Affiliates) makes no representation or warranty as to the accuracy of any information (if any) provided pursuant to this Section 7.03 shall affect 5.5, and AMID may not rely on the accuracy of any representationsuch information, warrantyin each case other than as expressly set forth in Holdings LP’s representations and warranties contained in Article III.
(d) If Holdings LP on the one hand or the AMID Entities on the other hand exercise rights of access under this Section 5.5 or otherwise (each an “Inspecting Party,” and collectively the “Inspecting Parties”), covenant or agreement conduct examinations or inspections under this Section 5.5 or otherwise, then (i) such access, examination and inspection will be at the Inspecting Party’s sole risk, cost and expense and such Inspecting Party waives and releases, on behalf of itself and each Person undertaking any such examination or inspection on its behalf, all damages, losses, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) and other claims against the other Parties and their partners and members and their Affiliates and the respective employees, directors, officers, attorneys, contractors, Representatives and agents of such Persons (collectively the “Inspection Indemnitees”) to the extent arising in any way therefrom, except to the extent of an Inspection Indemnitee’s gross negligence or willful misconduct, and (ii) except to the extent of an Inspection Indemnitee’s gross negligence or willful misconduct, the Inspecting Party will indemnify, defend and hold harmless the Inspection Indemnitees from and against any and all damages, losses, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) and other claims of any kind or character arising out of the granting of any such access or the undertaking of any such examination or inspection. THE FOREGOING RELEASE AND INDEMNIFICATION WILL APPLY WHETHER OR NOT SUCH DAMAGES, LOSSES, LIABILITIES, FINES, PENALTIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OR OTHER CLAIMS ARISE OUT OF (A) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE INSPECTION INDEMNITEES OR (B) STRICT LIABILITY. Notwithstanding any provision to the contrary contained in this Agreement, the provisions of this Section 5.5 will survive the termination of this Agreement of any party hereto or any condition pursuant to Article VII and the obligations of the parties heretoClosing.
Appears in 2 contracts
Samples: Contribution Agreement (Southcross Energy Partners, L.P.), Contribution Agreement (American Midstream Partners, LP)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective TimeUpon reasonable notice, the Company shall, shall (and shall cause each of its Consolidated Subsidiaries to, provide ) afford reasonable access to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice and Parent External Adviser’s Representatives, in a manner not disruptive to the officers, employees and other personnel, agents, properties, offices and other facilities operations of the business of the Company and its Subsidiaries (including any member of the Subsidiary Adviser Group), during normal business hours and upon reasonable notice throughout the period prior to the Company Merger Effective Time (or until the earlier termination of this Agreement), to the personnel, advisors, properties, books and records thereof of the Company and its Consolidated Subsidiaries and, during such period, shall (including for purposes and shall cause each of conducting regulatory compliance reviews its Consolidated Subsidiaries to) furnish promptly to such Representatives all information concerning the business, properties and audits personnel of the Company and its Consolidated Subsidiaries, and to allow Parent to provide copies thereof, as may reasonably be in compliance with its policies and procedures and any applicable Law at the Effective Time)requested; provided, however, that (x) nothing herein shall require the Company shall not be required or any of its Consolidated Subsidiaries to provide access to or disclose any such information to the extent Parent, Parent External Adviser or Acquisition Sub if such access or disclosure would result would, in the loss reasonable judgment of attorney-client privilege the Company, (i) violate Applicable Law or the provisions of any agreement to which the Company or any of its Subsidiaries (provided that including any member of the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access Subsidiary Adviser Group) is a party or disclosure in a manner that does not result in a loss of (ii) jeopardize any attorney-client or other legal privilege; provided, further, that nothing herein shall authorize Parent, Parent External Adviser or their respective Representatives to undertake any environmental testing involving sampling of soil, groundwater, or similar invasive techniques at any of the Company’s (or its Subsidiaries’ (including any member of the Subsidiary Adviser Group’s)) and (yproperties. No investigation or access permitted pursuant to this Section 5.5(a) shall affect or be deemed to modify any representation or warranty made by the Company may limit physical access hereunder. The Company Confidentiality Agreement shall apply with respect to information furnished by the propertiesCompany, offices its Consolidated Subsidiaries and the Company’s officers, employees and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsRepresentatives hereunder.
(b) Without limiting the generality Upon reasonable notice, Parent shall (and shall cause each of its Consolidated Subsidiaries and Acquisition Sub to) afford to Representatives of the foregoingCompany reasonable access, in a manner not disruptive to the operations of the business of Parent and its Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Company covenants and agrees that, between Merger Effective Time (or until the date earlier termination of this Agreement and the Effective TimeAgreement), the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect personnel, advisors, properties, books and records of Parent and its Consolidated Subsidiaries and, during such period, shall (and shall cause each of its Consolidated Subsidiaries to) furnish promptly to non-immaterial communications with FDAsuch Representatives all information concerning the business, pre-submissions to FDA, submissions to FDAproperties and personnel of Parent and its Consolidated Subsidiaries, and any other regulatory issues under consideration for presentation to FDAprovide copies thereof, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parentas may reasonably be requested; provided, however, that the Company nothing herein shall not be required require Parent or any of its Consolidated Subsidiaries to provide such disclose any information to the extent providing Company if such information would result disclosure would, in the loss reasonable judgment of attorney-client privilege Parent, (i) violate Applicable Law or the provisions of the Company any agreement to which Parent or any of its Subsidiaries is a party or (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of ii) jeopardize any attorney-client or other legal privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA; provided, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissionsfurther, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of that nothing herein shall authorize the Company or its Subsidiaries prior Representatives to the Effective Time.
(c) Except as otherwise prohibited by applicable Lawundertake any environmental testing involving sampling of soil, from the date groundwater, or similar invasive techniques at any of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s (or its Subsidiaries’) properties. No investigation or access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto permitted pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e5.5(b) No investigation pursuant to this Section 7.03 shall affect or be deemed to modify any representationrepresentation or warranty made by Parent or Acquisition Sub hereunder. The Parent Confidentiality Agreement shall apply with respect to information furnished by Parent, warrantyits Consolidated Subsidiaries, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties heretoAcquisition Sub and Parent’s officers, employees and other Representatives hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Ares Capital Corp), Merger Agreement (American Capital, LTD)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with ARTICLE 7, the Company shall, and shall cause each of its Subsidiaries to, : (i) provide to Parent and Parent’s Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably with the business conducted by the Company or any of its Subsidiaries, upon reasonable prior notice to the Company, to the officers, employees and other personnel, agentsemployees, properties, offices and other facilities of the Company and each of its Subsidiaries and to the books and records thereof and (including for purposes ii) furnish during normal business hours upon prior notice such information concerning the business, properties, Contracts, assets and liabilities of conducting regulatory compliance reviews the Company and audits to allow each of its Subsidiaries as Parent to be in compliance with or its policies and procedures and any applicable Law at the Effective Time)Representatives may reasonably request; provided, however, that (x) the Company shall not be required to provide (or to cause any of its Subsidiaries to) afford such access to or disclose any furnish such information to the extent such access or disclosure would that the Company believes that doing so would: (A) result in the loss a waiver of attorney-client privilege of the Company or any of its Subsidiaries similar protection (provided that the Company shall give Parent notice of any information withheld, and use its Subsidiaries shall use their commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilegeprivilege or similar protection), (B) and result in the disclosure of any trade secrets of third parties, (yC) breach, contravene or violate any applicable Law (including any Regulatory Law) or (D) result in the disclosure of materials provided to the Company may limit physical access to the properties, offices and other facilities Board or resolutions or minutes of the Company and Board, in each case, that were provided to the Company Board in connection with its consideration of the Merger or the sale process leading to the Merger. Notwithstanding anything contained in this Agreement to the contrary, neither the Company nor any of its Subsidiaries shall be required to provide any access or furnish any information pursuant to this Section 5.2 to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of or information is reasonably pertinent to a Proceeding where the Company or any of its Subsidiaries affiliates, on the one hand, and Parent or any of its affiliates, on the other hand, are adverse parties or reasonably likely to become adverse parties. The Company may, as it deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the extent necessary other under this Section 5.2 as “Outside Counsel Only Material.” Such materials and information contained therein shall be given only to comply with applicable Lawsthe outside legal counsel of the recipient and will not be disclosed by such outside legal counsel to employees (including in-house legal counsel), officers, directors or other independent contractors (including accountants and expert witnesses) of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and foregoing or any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new covenants or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing agreements contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Lawherein, from the date of this Agreement until to the earlier of the Effective TimeTime or the termination of this Agreement in accordance with ARTICLE 7, the Company shall furnish promptly to Parent shall(which may be by filing or furnishing publicly via XXXXX) a copy of each report, schedule and other documents filed or submitted by it pursuant to the requirements of federal or state securities Laws and a copy of any communication (including “comment letters”) received by the Company from the SEC concerning compliance with securities Laws.
(c) The Confidentiality Agreement (the “Confidentiality Agreement”), dated July 2, 2024 by and between the Company and Patient Square Capital, L.P. shall apply with respect to information furnished under this Section 5.2 by the Company, its Subsidiaries and their Representatives. Prior to the Closing, each of Parent and Merger Sub shall not, and shall cause its Subsidiaries their respective Representatives not to, provide to contact or otherwise communicate with the employees (other than members of the Company’s senior leadership team), customers, suppliers, distributors of the Company and its Subsidiaries regarding this Agreement or the Transactions without the prior written consent of the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited During the Interim Period, to the extent permitted by applicable LawLaw and contracts, and subject to the reasonable restrictions imposed from the date time to time upon advice of this Agreement until the Effective Timecounsel, each of the Company Parties shall, and shall cause its each of the Company Subsidiaries to, provide afford to the Parent and Parties, Parent’s financing sources and their respective Representatives reasonable access during normal business hours and upon reasonable prior advance notice to the officers, employees and other personnel, agents, all of their respective properties, offices offices, books, contracts, commitments, personnel and other facilities records and, during such period, each of the Company Parties shall, and its shall cause each of the Company Subsidiaries and to, furnish reasonably promptly to the books Parent Parties (i) a copy of each report, schedule, registration statement and records other document filed by it during such period pursuant to the requirements of federal or state securities Laws, and (ii) all other information (financial or otherwise) concerning its business, properties and personnel the Parent Parties may reasonably request.
(b) Prior to the Closing, with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), the Parent Parties, at their own expense, shall have the right to such reasonable access during normal business hours in order to prepare or cause to be prepared surveys, inspections, engineering studies, environmental assessments and other tests, examinations or studies with respect to each Company Property that the Parent Parties deem to be reasonably necessary (collectively, “Tests”), so long as such Tests do not damage any property or any portion thereof in any material respect. The Parent Parties shall be required to conduct such Tests in a manner so as not to significantly disturb or interfere with the current use of the Company Properties, and upon completion of such Tests, the Parent Parties agree at their sole expense to restore the Company Properties in all material respects to their respective conditions immediately prior to such Tests. The Parent Parties shall indemnify, defend (with counsel reasonably satisfactory to the Company Parties), protect and hold the Company Parties and all Company Subsidiaries harmless from and against any and all liability, loss, cost, damage or expense (including for purposes reasonable attorneys fees and costs), that the Company Parties or any Company Subsidiaries sustain or incur by reason of conducting regulatory compliance reviews and audits or in connection with any Tests conducted by the Parent Parties or their Representatives relating to allow or in connection with the Company Properties, or entry by the Parent Parties or their Representatives onto the Company Properties, solely to the extent that such Tests or entries were the proximate cause of any such losses, costs, damages or expense.
(c) Notwithstanding the foregoing, the Company Parties shall not be required by this Section 6.4 to provide the Parent Parties, Parent’s financing sources or their respective Representatives with access to or to disclose information (x) that is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement or entered into after the date of this Agreement in compliance the ordinary course of business consistent with its policies and procedures and any applicable Law at the Effective Time); past practice (provided, however, that (x) the Company Parties shall not be use their commercially reasonable efforts to obtain the required consent of such third party to provide access to or disclose any such information to the extent such access or disclosure), (y) the disclosure of which would result in the loss of attorney-client privilege of the Company violate any Law or any of its Subsidiaries fiduciary duty (provided provided, however, that the Company and its Subsidiaries Parties shall use their commercially reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of any Law or fiduciary duty) or (z) that is subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the Company Parties shall use their commercially reasonable efforts to allow for such access or disclosure in a manner to the extent that does not result in a loss of any such attorney-client privilege) and (y) the Company may limit physical access to the propertiesclient, offices and attorney work product or other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client legal privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All The Parent Parties shall use their commercially reasonable efforts to minimize any disruption to the business of the Company Parties or any Company Subsidiaries that may result from any requests for access, data or information obtained by hereunder. Prior to the Effective Time, without prior notice to and reasonable consultation with the Company, each of the Parent Parties shall not, and shall cause their respective Representatives and Affiliates not to, contact or otherwise communicate with the employees of the Company Parties or any Company Subsidiary (other than those employees set forth on Section 6.4(d) of the Company Disclosure Letter) or tenants, lenders or other parties with which the Company Parties or any Company Subsidiary has a business relationship regarding the business of the Company Parties and the Company Subsidiaries or this Agreement and the transactions contemplated hereby.
(e) Each of the parties hereto pursuant will hold, and will cause its Representatives, financing sources and Affiliates to this Section 7.03 shall be kept confidential hold, any nonpublic information of the other in confidence to the extent required by and in accordance with with, and will otherwise comply with, the terms of the Confidentiality Agreement.
(ef) No investigation pursuant The Company Parties agree to this Section 7.03 shall affect any representation, warranty, covenant give prompt written notice to the Parent Parties upon becoming aware of the occurrence or agreement in this Agreement impending occurrence of any party hereto event or circumstance relating to it or any condition to the obligations of the parties heretoCompany Subsidiaries which could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (CapLease, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company Acquiror and its Representatives shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access at all times during normal business hours upon and with reasonable advance notice prior notice to the officersClosing, employees have full and other personnelcontinuing access to the employees, agentsfacilities, propertiesoperations, offices records and other facilities properties of the Company and each Acquired Subsidiary. Acquiror and its Subsidiaries and Representatives may, prior to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent Closing, make or cause to be in compliance made such reasonable investigation of the employees, operations, records and properties of the Company and each Acquired Subsidiary and of their financial and legal condition as Acquiror shall deem necessary or advisable to familiarize itself with its policies such records, properties and procedures and any applicable Law at the Effective Time)other matters; provided, however, that such access or investigation shall not interfere unnecessarily with the normal operations of the Company or any Acquired Subsidiary. Upon request, the Company shall, or shall cause the applicable Acquired Subsidiary to, furnish Acquiror or its Representatives attorneys’ responses to auditors’ requests for information regarding the Company or the applicable Acquired Subsidiary, and such financial and operating data and other information reasonably requested by Acquiror (xprovided, with respect to attorneys, such disclosure would not result in the waiver by the Company or the applicable Acquired Subsidiary of any claim of attorney-client privilege), and will permit Acquiror and its Representatives to discuss such information directly with any individual or firm performing auditing or accounting functions for the Company or the applicable Acquired Subsidiary (provided that an officer of the Company be afforded a reasonable opportunity to be present during such discussion), and such auditors and accountants shall be directed to furnish copies of any reports or financial information as developed to Acquiror or its Representatives. This Section 6.1 shall not require the disclosure of any information the disclosure of which to Acquiror would be prohibited by any Applicable Laws and Regulations. Furthermore, this Section 6.1 shall not give Acquiror and its Representatives access to, or require the disclosure of any information regarding, the Non-Banking Business that will be separated from the Company prior to the Closing pursuant to the Internal Restructuring and the Distribution, except to the extent, if any, that such information is reasonably required by Acquiror for the purpose of assessing any post-Closing liabilities or obligations of the Company with respect to the Non-Banking Business.
(b) The Company shall cause each of the Bank and LFC to allow a Representative of Acquiror to attend, as an observer only, all meetings of the board of directors of each, and of the loan committee of the Bank. The Company shall cause each of Acquired Bank and LFC to give reasonable notice to Acquiror of any such meeting and, if known, the agenda for or business to be discussed at such meeting. The Company shall cause each of the Bank and LFC to provide to Acquiror all information provided to the directors on all such boards or members of such committees in connection with all such meetings or otherwise provided to the directors or members and, upon specific request, to provide any other financial reports or other analysis prepared for senior management of the Bank and LFC. It is understood by the parties that Acquiror’s Representative will not have any voting rights with respect to matters discussed at these meetings and that Acquiror is not managing the business or affairs of the Bank or LFC. All information obtained by Acquiror at these meetings shall be treated in confidence. Notwithstanding the foregoing, the Company shall not be required to cause the Bank or LFC to provide access to Acquiror with any materials: (i) concerning or disclose discussing the Contemplated Transactions; (ii) in violation of any Applicable Laws and Regulations; or (iii) in any case where the Company has been advised by counsel that Acquiror’s receipt of such information to the extent such access or disclosure materials would result in a waiver of the loss of attorney-client privilege of the Company Bank or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsLFC.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Midland States Bancorp, Inc.), Merger Agreement (Midland States Bancorp, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from Laws relating to the date exchange of this Agreement until the Effective Timeinformation, the Company shall, Seller shall afford to Parent’s and shall cause its Subsidiaries to, provide to Parent and ParentPurchaser’s Representatives reasonable access during normal business hours upon reasonable during the period prior notice to the officersSecond Closing or the termination of this Agreement to all of its and its Subsidiaries’ properties, employees books, Contracts, personnel and records and the Seller shall (i) furnish promptly to Parent and Purchaser (1) a copy of each report, schedule, registration statement and other personneldocument filed by it pursuant to the requirements of federal or state securities Laws and (2) other information concerning its and its Subsidiaries’ business, agentsproperties and personnel as Parent, propertiesPurchaser or any of their Representatives may reasonably request and (ii) instruct its employees, offices counsel, financial advisors, auditors and other facilities authorized Representatives to cooperate with Parent and Purchaser in their investigation of the Company Seller and its Subsidiaries and Subsidiaries. The information provided will be subject to the books and records thereof (including for purposes terms of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with the Confidentiality Agreement. Neither the Seller nor its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company Subsidiaries shall not be required to provide access to or to disclose any such information to the extent where such access or disclosure would result in materially interfere with the loss of attorney-client privilege of the Company or any conduct of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts business, contravene any Law, rule, regulation, order, judgment, decree, or would reasonably be expected to allow for such access violate or disclosure in a manner that does not result in a loss or impairment of any attorney-client or work product privilege) and (y) . The parties hereto will use commercially reasonable efforts to make appropriate substitute disclosure arrangement under circumstances in which the Company may limit physical access to the properties, offices and other facilities restrictions of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege)preceding sentence apply. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall 4.6 or information provided, made available or delivered to Purchaser pursuant to this Agreement (other than information contained in the Seller Disclosure Schedule) will affect any representation, warranty, covenant of the representations or agreement warranties of the Seller contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto.
(b) The Seller recognizes that by reason of its ownership of the Purchased Assets, including its use and ownership of the Key Products, the Seller and its Affiliates have acquired Confidential Information and Trade Secrets concerning the Key Products and the other Purchased Assets, the use or disclosure of which could cause Parent, Purchaser or their Affiliates substantial loss and damages. Accordingly, the Seller covenants to Parent and Purchaser that the Seller and its Affiliates will not, except in performance of its obligations to Parent and Purchaser or with the prior written consent of Parent, directly or indirectly, disclose Confidential Information relating to the Key Products or other Purchased Assets that it may learn or has learned by reason of its ownership of the Key Products or other Purchased Assets, unless (i) it is or becomes generally available to the public other than as a result of disclosure by the Seller or any of its Affiliates, (ii) it is generally made available to third parties without any limitations on its use or disclosure or (iii) disclosure is required by applicable Law. Nothing in this Section 4.6(b) shall be deemed to permit the disclosure by the Seller or any of its Affiliates of any Trade Secrets concerning the Key Products or the other Purchased Assets.
(c) The Seller shall preserve until the sixth anniversary of the First Closing Date all properties, books, Contracts and records possessed by the Seller and its Subsidiaries which are not included in the First Closing Assets which may contain information relating to any of the First Closing Assets. From and after the First Closing, the Seller shall provide Parent, Purchaser and their Representatives with reasonable access during normal business hours to such properties, books, Contracts and records as well as personnel. Parent and Purchaser and their Representatives shall have the right to make copies of such books, Contracts and records. If the Seller intends to liquidate or dissolve during such six-year period, the Seller shall first offer in writing at least ninety (90) days prior to such liquidation or dissolution to transfer such properties, books, Contracts and records to Parent.
(d) The Seller shall preserve until the sixth anniversary of the Second Closing Date all properties, books, Contracts and records possessed by the Seller and its Subsidiaries which are not included in the Second Closing Assets which may contain information relating to any of the Second Closing Assets, Assumed Liabilities or Key Products Employees. From and after the Second Closing, the Seller shall provide Parent, Purchaser and their Representatives with reasonable access during normal business hours to such properties, books, Contracts and records as well as personnel. Parent and Purchaser and their Representatives shall have the right to make copies of such books, Contracts and records. If the Seller intends to liquidate or dissolve during such six-year period, the Seller shall first offer in writing at least ninety (90) days prior to such liquidation or dissolution to transfer such properties, books, Contracts and records to Parent.
(e) Subject to applicable Laws relating to the exchange of information, and with respect to the Purchased Assets and the Boulder Facilities, until the second anniversary of the Second Closing Date, Parent and Purchaser shall afford to the Seller and its Representatives reasonable access to records contained in the Purchased Assets and the Key Products Employees during normal business hours after the Second Closing Date and on at least three Business Days’ prior written notice, for any reasonable business purpose specified by the Seller in such notice.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Insmed Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Upon reasonable notice and subject to Applicable Law, each of the Company and Parent shall, and each shall cause its Subsidiaries to, afford to the other party and its Representatives, reasonable access, during normal business hours during the period from the date of this Agreement until to the earlier of the First Merger Effective TimeTime or the termination of this Agreement, to all of its properties, books, contracts and records, and, during such period, each of the Company and Parent shall, and each shall cause its Subsidiaries to, provide make available to the other party all other information concerning its businesses, properties and personnel as the other may reasonably request, and instruct its Representatives to reasonably cooperate with the other party in its investigation. All information furnished pursuant to this Agreement shall be subject to the confidentiality agreement, dated as of May 24, 2015, between Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice the Company (the “Confidentiality Agreement”). No information or knowledge obtained in any investigation pursuant to this Section 8.01 shall affect or be deemed to modify any representation or warranty made by the Company or Parent pursuant to this Agreement.
(b) Notwithstanding anything to the officerscontrary in Sections 8.01, employees and other personnel8.02 or 8.03, agentsnone of the Company, Parent or any of their respective Subsidiaries shall be required to provide access to its properties, offices and other facilities books, contracts, records or personnel if such access would unreasonably disrupt its operations, or provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of such party or its Subsidiaries or contravene any Applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement; provided that each of the Company and Parent shall, and each shall cause its Subsidiaries and to, use reasonable best efforts to the books and records thereof make appropriate substitute disclosure arrangements under circumstances in which such restrictions apply (including for purposes of conducting regulatory compliance reviews redacting such information (i) to remove references concerning valuation, (ii) as necessary to comply with contractual arrangements in effect on or after the date hereof, and audits (iii) as necessary to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Timeaddress reasonable attorney-client or other privilege or confidentiality concerns); provided, however, that (x) the Company in no event shall not be required to provide either party have access to individual performance or disclose any such evaluation records, medical histories or other similar information to the extent such access or disclosure would result that in the loss of attorney-client privilege reasonable opinion of the Company applicable party is sensitive or the disclosure of which would reasonably be expected to subject such party or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss risk of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities liability. Each of the Company and its Subsidiaries Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the extent other under Section 8.01 or Section 8.02 as “Outside Counsel Only Material.” Such materials and the Company reasonably determinesinformation contained therein shall be given only to the outside counsel of the recipient and, subject to any additional confidentiality or joint defense agreement the parties may mutually propose and enter into, will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in light advance from the source of COVID-19, that such access would jeopardize the health and safety of any employee of materials (the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, as the right to control or direct the FDA regulatory strategy of the Company case may be) or its Subsidiaries prior to the Effective Timelegal counsel.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawUpon reasonable notice, from the date of this Agreement until the Effective Time, the Company CBOT Holdings shall, and shall cause its the CBOT Holdings Subsidiaries to, provide afford to Parent the officers, directors, employees, accountants, counsel, financial advisors, consultants, financing sources and Parent’s Representatives reasonable other advisors or representatives (collectively, “Representatives”) of CME Holdings access during normal business hours upon reasonable prior notice to all of CBOT Holdings’ and its Subsidiaries’ properties, books, records, contracts, commitments and personnel and shall furnish, and shall cause to be furnished, as promptly as practicable to CME Holdings (i) a copy of each material report, schedule and other document filed, furnished, published, announced or received by it during such period pursuant to the officers, employees requirements of federal or state securities laws or a Governmental Entity or Self-Regulatory Organization and (ii) all other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and information with respect to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)CBOT Holdings as CME Holdings may reasonably request; provided, however, that (x) CBOT Holdings may restrict the Company shall not be required to provide foregoing access to or disclose any such information to the extent such access required by applicable Law; and provided, further, that the foregoing shall not require CBOT Holdings to permit any inspection, or disclosure to disclose any information, that in the reasonable judgment of CBOT Holdings would result in the loss disclosure of attorney-client privilege any trade secrets of the Company third parties or violate any of its Subsidiaries (provided that the Company and its Subsidiaries obligations with respect to confidentiality if CBOT Holdings shall use their have used reasonable best efforts to allow for obtain the consent of such access third party to such inspection or disclosure in a manner that does not result in a loss disclosure. CBOT Holdings shall keep CME Holdings reasonably informed from time to time as to status and developments regarding any audit, investigation, claim, suit or other proceeding (if any) with respect to Taxes and provide to CME Holdings, when available and prior to filing, drafts of attorney-client privilege) any income Tax Returns relating to CBOT Holdings or any CBOT Holdings Subsidiary. CBOT Holdings shall, and shall cause the CBOT Holdings Subsidiaries to, reasonably cooperate with CME Holdings to provide such information (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent in CBOT Holdings’ or any CBOT Holdings Subsidiary’s possession or control) or customary affidavits as may be reasonably necessary for the Company reasonably determinesissuance, in light at CME Holdings’ sole cost, of COVID-19an ALTA title policy at Closing, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or subject, however, to the extent necessary to comply with applicable Lawsfacts and circumstances existing at the time of delivery of such information or affidavits, as the case may be.
(b) Without limiting Upon reasonable notice, CME Holdings shall, and shall cause the generality CME Holdings Subsidiaries to, afford to the Representatives of the foregoing, the Company covenants and agrees that, between the date of this Agreement CBOT Holdings access during normal business hours to CME Holdings’ senior financial management personnel to receive periodic updates on financial information regarding CME Holdings and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to ParentCME Holdings Subsidiaries; provided, that CME Holdings may restrict the Company shall not be required to provide such information foregoing access to the extent providing such information required by applicable Law; and provided, further, that the foregoing shall not require CME Holdings to permit any inspection, or to disclose any information, that in the reasonable judgment of CME Holdings would result in the loss disclosure of attorney-client privilege any trade secrets of the Company third parties or violate any of its Subsidiaries (provided that the Company and its Subsidiaries obligations with respect to confidentiality if CME Holdings shall use their have used reasonable best efforts to provide obtain the consent of such information in a manner that does not result in a loss of attorney-client privilege). In order third party to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new inspection or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timedisclosure.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto furnished pursuant to this Section 7.03 6.3 shall be kept confidential in accordance with subject to the confidentiality agreement, dated as of March 7, 2006, between CBOT Holdings and CME Holdings (the “Confidentiality Agreement.
(e) ”). No investigation pursuant to this Section 7.03 6.3 shall affect any representationthe representations, warranty, covenant warranties or agreement in this Agreement of any party hereto or any condition conditions to the obligations of the parties heretoParties contained herein.
Appears in 2 contracts
Samples: Merger Agreement (Chicago Mercantile Exchange Holdings Inc), Merger Agreement (Cbot Holdings Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement hereof until the Effective TimeClosing Date, the Company shallSeller will (i) give Buyer, its counsel, financial advisors, auditors and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable other authorized representatives full access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agentsoffices, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof of Seller relating to the Business, (including for purposes ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of conducting regulatory compliance reviews and audits Seller to allow Parent cooperate with Buyer in its investigation of the Business. Any investigation pursuant to this Section shall be conducted in compliance such manner as not to interfere unreasonably with its policies and procedures and the conduct of the Business or any applicable Law at other business of Seller. Notwithstanding the Effective Time); providedforegoing, however, that (x) the Company Buyer shall not be required to provide have access to personnel records of Seller relating to individual performance or disclose evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject Seller to risk of liability. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any such information to the extent such access representation, warranty or disclosure would result in the loss of attorney-client privilege of the Company agreement given or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsmade by Seller hereunder.
(b) Without limiting For a period five (5) years after the generality Closing, Seller and its Affiliates will hold, and will use their best efforts to cause their respective officers, directors, employees, accountants, counsel, consultants, advisors and agents to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, all confidential documents and information concerning the Business, except to the extent that such information can be shown to have been (i) previously known on a nonconfidential basis by Seller, (ii) in the public domain through no fault of Seller or its Affiliates or (iii) later lawfully acquired by Seller from sources other than those related to its prior ownership of the foregoing, Business. The obligation of Seller and its Affiliates to hold any such information in confidence shall be satisfied if they exercise the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy same care with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as they would take to preserve the extent providing such information would result in the loss confidentiality of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeown similar information.
(c) Except as otherwise prohibited by applicable LawFor a period of five (5) years after the Closing Date, from the date Seller will afford promptly to Buyer and its agents reasonable access to its books of this Agreement until the Effective Timeaccount, Parent shallfinancial and other records, information, employees and shall cause its Subsidiaries to, provide auditors to the Company and extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Company’s Representatives reasonable Business; PROVIDED that any such access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent by Buyer shall not unreasonably interfere with the Company’s access to such personnel conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and records prior to the date hereof expenses (including, without limitation, attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsforegoing.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Transaction Agreement (Insilco Holding Co), Transaction Agreement (Insilco Corp/De/)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the The Company shallshall afford to Parent, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives officers, employees, accountants, counsel, consultants, financial advisors and other Representatives, reasonable access during normal business hours upon reasonable during the period prior notice to the officers, employees earlier of the Effective Time and other personnel, agents, the termination of this Agreement to all of its and its Subsidiaries’ properties, offices books and other facilities records and to those employees of the Company to whom Parent reasonably requests access, and, during such period, the Company shall furnish, as promptly as practicable, to Parent all information concerning its and its Subsidiaries Subsidiaries’ business, properties and to the books and records thereof personnel as Parent may reasonably request (including for purposes of conducting regulatory compliance reviews and audits the right to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedconduct Phase I Environmental Site Assessments, it being agreed, however, that (x) the foregoing shall not permit Parent or any such Representatives to conduct any environmental testing or sampling). Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall not be required to provide access to or disclose any such information to where the extent Company reasonably determines that such access or disclosure would result in jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts or contravene any Law or any Contract to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of which the Company or any of its Subsidiaries (provided is subject. The parties shall make appropriate substitute disclosure arrangements in circumstances where the previous sentence applies. Except for disclosures expressly permitted by the terms of that certain confidentiality letter agreement dated as of February 3, 2010, between Parent and the Company and its Subsidiaries shall use their reasonable best efforts (as it may be amended from time to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAtime, the Company also agrees to in a reasonably timely manner provide “Confidentiality Agreement”), Parent with any and all material communications with FDA with respect to its pre-submissions, submissionsshall hold, and shall cause their respective officers, employees, accountants, counsel, financial advisors and other non-immaterial regulatory issues such as IDEsRepresentatives to hold, clinical trials (whether new all information received from the Company or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parentits Representatives, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential confidence in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Share Exchange Agreement (Millipore Corp /Ma), Share Exchange Agreement (Millipore Corp /Ma)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawFrom and after the Closing, from upon reasonable notice to the date of this Agreement until the Effective TimeCompany, the Company shall, and shall cause its Subsidiaries Affiliates to, provide afford or cause to Parent be afforded to the Buyer Parties and Parent’s Representatives their Subsidiaries and their employees, counsel, auditors and representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agentsauditors, properties, offices books, Contracts, commitments and other facilities records (including accountant or auditor workpapers, subject to execution of a customary confidentiality agreement by the applicable Buyer Party) relating to the Company, its Subsidiaries or the Transactions for any reasonable business purpose, including in respect of insurance matters, financial reporting, regulatory and compliance matters, Tax matters and accounting of the Company and its Subsidiaries and Subsidiaries, in each case, in a manner so as to not unreasonably interfere in any material respect with the books and records thereof (including for purposes normal business operations of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)business of the Company; provided, however, that (x) the Company shall not be required to provide permit such access to or disclose any make such information disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would reasonably be likely to (i) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure would at the applicable Buyer Party’s prior written request and provided, further, that the Company shall not be required to pay any fee, penalty or other consideration to any such third party to obtain their consent), (ii) result in the loss of any attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss (or as much of attorney-client privilegeit as possible) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege), or (iii) violate any Law (provided that the Company shall use its reasonable best efforts to provide such access or make such disclosure in a manner that does not violate Law). In order Notwithstanding anything contained in this Agreement to keep Parent the contrary, the Company shall not be required to provide any access or make any disclosure to the Buyers pursuant to this Section 5.01(a) to the extent such access or information is reasonably informed regarding pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and any of the Buyers or any of their respective Affiliates, on the other hand, are adverse parties.
(b) From and after the Closing, the Company shall hold, and shall use its reasonable best efforts to cause their respective Representatives to hold, in confidence and not to disclose to any other party, and not to use for any purpose other than as expressly required by Law or by this Agreement or the New Merger Agreement, or in connection with reporting Tax information to the Company’s regulatory relationship with FDAshareholders, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect information, whether written or oral, concerning the business of Luxco 1A, Luxco 1B, the Transferred Subsidiaries, the Purchased Assets and the Assumed Liabilities, except to its pre-submissions, submissions, the extent that the Company can show that such information (a) is generally available to and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and known by the public through no fault of any other subject which would likely have a material impact on of the Company’s current , any of its Subsidiaries or future business. Nothing contained in this Section 7.03(bany of their respective Representatives (or Representatives of their respective Subsidiaries); or (b) is intended to give Parentlawfully acquired by any of the Company, directly any of its Subsidiaries or indirectlyany of their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, the right to control contractual or direct the FDA regulatory strategy fiduciary obligation. If any of the Company or its Subsidiaries prior or any of their respective Representatives are compelled to the Effective Time.
(c) Except as otherwise prohibited disclose any information by applicable judicial or administrative process or by other requirements of Law, from the date of this Agreement until Company shall promptly notify the Effective Time, Parent shallBuyer Parties in writing, and shall cause its Subsidiaries to, provide to the Company and shall disclose only that portion of such information which the Company’s Representatives Company is advised by its counsel in writing is legally required to be disclosed, provided that the Company shall use its commercially reasonable access during normal business hours upon efforts, at the Buyer Parties’ sole expense, to obtain an appropriate protective order or other reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to assurance that confidential treatment will be accorded such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsinformation.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Home Loan Servicing Solutions, Ltd.), Share and Asset Purchase Agreement (New Residential Investment Corp.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement hereof until the REIT Merger Effective Time, the Company shall, and shall cause each of its Subsidiaries toand each of the Company’s and its Subsidiaries’ directors, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnelagents to, agentsafford to Parent and to the directors, officers, employees, and agents of Parent access upon reasonable notice and at reasonable times without undue interruption (and will request the same from the Company’s auditors, attorneys, financial advisors and lenders) to (a) the properties, offices books, records and other facilities contracts of the Company and the its Subsidiaries and (b) the officers and employees of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)Subsidiaries; provided, however, that (x) Parent shall obtain the Company’s consent, which consent shall not be unreasonably withheld, to a schedule of properties to be visited and officers and employees to be accessed prior to any such visits or access. The Company shall furnish Parent such financial, operating and other data and information as Parent may reasonably request. Parent shall indemnify and hold the Company and its Subsidiaries harmless from and against any and all losses or damages incurred by the Company or its Subsidiaries as a result of the Parent’s or the Parent representatives’ inspection of the Company Properties, provided, however that the Parent’s indemnification obligations hereunder shall not include any obligation whatsoever with respect to any such losses or damages (including claims that any Company Property has declined in value) arising out of, resulting from or incurred in connection with the discovery of any existing condition at a Company Property. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose any such information to the extent where such access or disclosure would result in jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries or contravene any Law or binding agreement entered into prior to the date of this Agreement (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for obtain consent from the applicable third party or enter into a customary joint defense agreement to enable the disclosure of such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsinformation).
(b) Without limiting Prior to the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the REIT Merger Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Parent pursuant to this Section 7.03 and pursuant to the confidentiality agreement, dated October 4, 2007 (the “Company Confidentiality Agreement”), between Parent and the Company, shall be kept confidential in accordance with the Company Confidentiality Agreement. Prior to the REIT Merger Effective Time, all information obtained by the Company pursuant to the confidentiality agreement, dated January 18, 2008 (the “Parent Confidentiality Agreement”), between Parent and the Company, shall be kept confidential in accordance with the Parent Confidentiality Agreement.
(ec) No investigation pursuant to this Section 7.03 or otherwise shall affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (GMH Communities Trust), Merger Agreement (GMH Communities Trust)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawLaw or as would be reasonably expected to violate or result in the loss or waiver of any attorney-client (or other legal) privilege, from during the date of this Agreement until the Effective TimePre-Closing Period, the Company shall, shall (and shall cause its the Company Subsidiaries to), under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company or any Company Subsidiary: (i) provide to Parent and Parent’s its Representatives reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records thereof and (including for purposes ii) furnish as promptly as practicable to Parent such information concerning the business, properties, Company Products, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company and the Company Subsidiaries as Parent or its Representatives may reasonably request; provided that nothing herein shall not be required require the Company to provide (or cause its Company Subsidiaries to) afford such access to or disclose any furnish such information to that extent that the extent such access or disclosure Company’s outside legal counsel advising it in writing that doing so would result in (A) the violation of applicable law, (B) the loss or waiver of any attorney-client privilege (or other legal) privilege, (C) the disclosure of materials provided to the Company Board or resolutions or minutes of the Company Board, in each case, related to or in connection with the Company Board’s consideration of the Merger or (D) the breach or violation of the provisions of any Contract to which the Company or any of its the Company Subsidiaries is a party (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to obtain waivers of any such restrictions); provided, further, that, in the case of the foregoing clause (A), the Company shall use reasonable best efforts to provide such access or disclosure in a manner that does not violate Law, in the case of the foregoing clause (B), the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does would not result in a loss of attorney-client such privilege) , including to the extent requested by Parent and if applicable, by entering into a customary joint defense agreement that would alleviate such loss of privilege, and, in the case of the foregoing clause (y) C), the Company may limit physical shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not result in the disclosure of materials provided to the properties, offices and other facilities Company Board or resolutions or minutes of the Company and its Subsidiaries Board, in each case, related to or in connection with the Company Board’s consideration of the Merger, including if applicable, by redacting any portions of such materials, minutes or resolutions related to the extent Company Board’s consideration of the Merger where such materials, minutes or resolutions include matters that are not related to the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee Board’s consideration of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsMerger.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Xxxxxx, Merger Sub or their respective Representatives pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with the Confidential Disclosure Agreement, dated November 6, 2023 (the “Confidentiality Agreement”), between Parent and the Company.
(ec) Prior to the Closing, each of Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact or otherwise communicate with the employees (other than members of the Company’s senior leadership team), customers, suppliers or distributors of the Company and any Company Subsidiaries regarding the business of the Company or any Company Subsidiary, this Agreement or the Transactions without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; provided that nothing in this Section 6.02(c) shall prevent Parent, Merger Sub or their respective Affiliates from contacting or otherwise communicating in the ordinary course of business with such customers, suppliers or distributors so long as such communications do not address or otherwise relate to the Company, any Company Subsidiary, their respective businesses, this Agreement or the Transactions.
(d) No investigation pursuant to this Section 7.03 6.02 shall affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 2 contracts
Samples: Merger Agreement (Boston Scientific Corp), Merger Agreement (Axonics, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited To the extent permitted by applicable Law, from the date of this Agreement until the Effective Time, the Company shallshall afford to Parent, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives officers, employees, accountants, counsel, financial advisors, financing sources (and their advisors) and other Representatives, reasonable access during normal business hours and upon reasonable prior notice to the officersCompany during the period prior to the Effective Time to all its and its Subsidiaries’ properties, employees books, Contracts, commitments, personnel and records, and, during such period, the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other personneldocument filed by it during such period pursuant to the requirements of Federal or state securities Laws and (ii) all other information concerning its and its Subsidiaries’ business, agents, properties, offices properties and other facilities personnel as Parent may reasonably request; provided that such access and inspections shall not unreasonably disrupt the operations of the Company or its Subsidiaries; and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, howeverprovided further, that (x) the Company shall not be required to provide (or to cause any of its Subsidiaries to) so confer, afford such access to or disclose any furnish such copies or other information to the extent such access or disclosure that doing so would result in a violation of law, result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege, including through the use of joint defense agreements) and (y) the Company may limit physical access or which are subject to the properties, offices and other facilities of the Company and its Subsidiaries confidentiality obligations owing to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) third parties. Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement hereof and the Effective Time, the Company shall keep (and shall cause its Affiliates to) reasonably cooperate with Parent reasonably informed as in connection with Parent securing financing to consummate the Merger (including debt and/or equity financing), including, without limitation, cooperating with the Parent in obtaining appraisals of the assets of the Company and its Subsidiaries, sending notices to reflect the change of control, obtaining reasonable access to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDAaccountants and their work papers, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies making employees of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonably available, providing all financial information relating to the Company and its Subsidiaries as may be reasonably requested by Parent, and permitting Parent and its accountants reasonable best efforts access to provide such information in a manner that does not result in a loss of attorney-client privilege)the Company and its Subsidiaries. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAaddition, the Company also agrees shall deliver estimated and reasonably detailed final monthly financial results and statements to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on promptly as practicable following each of their preparation at the Company’s current or future businessend of each fiscal month. Nothing contained in this Section 7.03(b) is intended Agreement shall give to give ParentParent or its Subsidiaries, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company Company’s or its Subsidiaries Subsidiaries’ operations prior to the Effective TimeTime in any unlawful manner.
(cb) Except for disclosures expressly permitted by the terms of the Mutual Non-Disclosure Agreement effective as otherwise prohibited by applicable Lawof November 2005 between Parent and the Company (the “Confidentiality Agreement”), from the date of this Agreement until the Effective Time, (i) Parent shallshall hold, and shall cause its Subsidiaries toand their respective directors, provide officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the Company, directly or indirectly, in confidence in accordance with the Confidentiality Agreement and (ii) the Company shall hold, and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and shall cause its Subsidiaries and their respective officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the Parent, directly or indirectly, in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential confidence in accordance with the Confidentiality Agreement. The Confidentiality Agreement shall survive any termination of this Agreement.
(ec) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant 5.02 or agreement in this Agreement of information provided or received by any party hereto pursuant to this Agreement shall affect the representations, warranties, covenants or any condition agreements of the parties (or remedies with respect thereto) or the conditions precedent to the obligations of the parties under this Agreement to effect the Closing or otherwise (i.e., no such investigation, information or knowledge of any event, fact, or circumstance shall be deemed to vitiate any rights of any party hereto).
(d) The Company shall use its best efforts to file with the SEC when due under law its Reports on Form 10-K and Form 10-Q.
Appears in 2 contracts
Samples: Merger Agreement (Valassis Communications Inc), Merger Agreement (Advo Inc)
Access to Information; Confidentiality. (a) Except Prior to the Effective Time and upon reasonable notice and without unreasonable disruption to the business carried on by the Company or the Company Subsidiaries, the Company shall (and shall cause the Company Subsidiaries to) afford to Parent, MergerSub and their respective Representatives reasonable access, during normal business hours, to its officers, employees, properties, books, Contracts, commitments, personnel and records (other than the portion of Company Board minutes which discuss merger proposals) as otherwise prohibited Parent may reasonably request, and, during such period, the Company shall (and shall cause each of the Company Subsidiaries to) furnish promptly to Parent and MergerSub (i) a copy of each report, schedule, registration statement and other document filed by it pursuant to the requirements of applicable LawU.S. federal securities Laws and (ii) all other information concerning its business, from properties and personnel as Parent or MergerSub may reasonably request; provided that the foregoing shall not require the Company (A) to disclose any information that, in the reasonable judgment of the Company, would violate any applicable Law or (B) to disclose any information of the Company or any Company Subsidiary which would be reasonably likely to cause a waiver of any attorney-client privilege or attorney work product protection in the opinion of counsel to the Company (provided further that, in each such case under clauses (A) or (B), the Company shall use its reasonable best efforts to put in place an arrangement to permit such disclosure without violating such Law or without loss of such privilege or protection). Parent shall be entitled to undertake environmental investigations at any of the properties owned, operated or leased by the Company or any Company Subsidiary, provided, that such investigations shall not include any intrusive sampling without the consent of the Company, such consent not to be unreasonably withheld or delayed. All requests for information made pursuant to this Section 5.02(a) shall be directed to the executive officer or other Person designated by the Company. From the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep further afford to Representatives of Parent reasonably informed as and MergerSub reasonable access to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration officers of the Company for presentation to FDA, including IDEs, clinical trials (whether purposes of negotiating new or on-going), amended employment agreements between such executive officers and medical technology, including the Surviving Corporation. No investigation pursuant to this Section 5.02 shall affect any representation or warranty made by providing copies of material the parties hereunder.
(b) Any information provided to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of Parent by the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDASubsidiaries, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from or subsequent to the date of this Agreement until the Effective TimeAgreement, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the letter agreement between the parties dated November 9, 2010 regarding confidentiality (the “Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation”), warrantyprovided, covenant or agreement in this Agreement of any party hereto or any condition to however, that, notwithstanding the obligations terms of the parties heretoConfidentiality Agreement, Parent may provide information of the type covered by the Confidentiality Agreement to potential financing sources subject to customary confidentiality arrangements with such persons regarding such information.
Appears in 2 contracts
Samples: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, provide afford to Parent and Parent’s Representatives Merger Sub, and their respective Representatives, reasonable access access, during normal business hours and upon reasonable prior notice notice, to all of the officers, employees and other personnelemployees, agents, properties, offices books, contracts and records of the Company and its Subsidiaries, and during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish reasonably promptly all other facilities information concerning the business, properties and personnel of the Company and its Subsidiaries and as Parent or Merger Sub may reasonably request. Notwithstanding anything to the books and records thereof contrary provided herein, the Company may restrict or prohibit such access to the extent that (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and a) any applicable Law at requires the Effective Time); Company or its Subsidiaries to restrict or prohibit such access, (b) granting such access would violate any Contract or material obligation of the Company or any of its Subsidiaries with a third Person with respect to confidentiality or otherwise breach, contravene or violate, constitute a default under, or give a third Person the right to terminate or accelerate any obligations under, any then-effective Contract to which the Company or any of its Subsidiaries is a party or would disclose any information that is competitively sensitive or (c) granting access to such documents or information would reasonably be expected to result in a waiver of any attorney-client privilege, work product doctrine or other applicable privilege in respect of such documents or information, provided, however, that (x) the Company shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate the applicable Law, Contract or material obligation or waive such privilege or work-product doctrine. Prior to the Effective Time, Parent and Merger Sub will hold any information obtained pursuant to this Section 5.4 in accordance with the terms of the Confidentiality Agreement. No investigation pursuant to this Section 5.4 shall affect or be deemed to modify any representation or warranty made by the Company hereunder. Notwithstanding anything contained herein to the contrary, the Company shall not be required to provide any access or make any disclosure to or disclose any such information Parent pursuant to this Section 5.4 to the extent such access or disclosure would result in the loss of attorney-client privilege of information is reasonably pertinent to a litigation where the Company or any of its Subsidiaries (provided that Affiliates, on the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAone hand, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company Parent or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAAffiliates, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parentother hand, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeare adverse parties.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (K2m Group Holdings, Inc.), Merger Agreement (Stryker Corp)
Access to Information; Confidentiality. (a) Except The Company shall afford to Parent, Merger Sub and their respective Representatives, reasonable access during normal business hours and upon reasonable advance notice, under the supervision of the Company’s or its Subsidiaries’ personnel and in a manner as otherwise prohibited by applicable Lawshall not unreasonably interfere with the business or operations of the Company or any Subsidiary thereof, during the period from the date of this Agreement until the earlier of the Effective TimeTime and the termination of this Agreement pursuant to Article IX to all of the properties, books and records of the Company and its Subsidiaries, and, during such period, the Company shall, and shall cause its Subsidiaries to, provide furnish as promptly as practicable to Parent all information concerning the business, properties and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities personnel of the Company and its Subsidiaries and to as Parent may reasonably request. Notwithstanding the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedforegoing, however, that (x) the Company shall not be required to provide access to or disclose any such information to where the extent Company reasonably determines that such access or disclosure would result in jeopardize the loss protection of the attorney-client or any other privilege of the Company Company, contravene any Law, any fiduciary duty or any of its Subsidiaries (provided that Contract to which the Company is a party or cause significant competitive harm to the Company and its Subsidiaries shall use their business if the transactions contemplated by this Agreement are not consummated, so long as the Company has taken all reasonable best efforts steps to allow for permit inspection of or to disclose such access or disclosure in information on a manner basis that does not result in a loss of attorney-client privilege) and (y) contravene the Company may limit physical access to applicable Law or Contract or waive the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19Company’s privilege with respect thereto; provided, that such access would jeopardize and information shall be granted or made available, as applicable, to external counsel for Parent (subject to external counsel entering into a customary common interest agreement with the health Company, on terms mutually agreeable to Parent and safety the Company) to the extent required for the purpose of complying with applicable Laws, including Antitrust Laws. Prior to the Effective Time, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall not contact any suppliers to, or customers of, the Company or its Subsidiaries and Parent shall have no right to perform invasive or subsurface investigations of any employee owned or leased real property of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsSubsidiaries.
(b) Without limiting the generality of the foregoing, the Company covenants Parent and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shallcomply with, and shall cause its Subsidiaries totheir respective Representatives to comply with, provide to all of their respective obligations under the Confidentiality Agreement, dated February 17, 2012, between Parent and the Company and (the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with “Confidentiality Agreement”), which shall survive the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review termination of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential Agreement in accordance with the Confidentiality Agreementterms set forth therein.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Easylink Services International Corp), Merger Agreement (Open Text Corp)
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its each of the Company Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable prior notice to (under the officers, employees supervision of appropriate personnel and other personnel, agents, properties, offices and other facilities in a manner that does not unreasonably interfere with the normal operation of the business of the Company and its Subsidiaries and the Company Subsidiaries) during the period prior to the Effective Time or the termination of this Agreement to all their respective properties, books and records thereof (including for purposes of conducting regulatory compliance reviews records, Contracts and audits personnel and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish, as promptly as reasonably practicable, to allow Parent to all information concerning its business, properties and personnel as Parent may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) neither the Company nor any of the Company Subsidiaries shall not be required to provide afford access to or disclose any such furnish information to the extent (and after notice to Parent) (a) such information is subject to the terms of a confidentiality agreement with a third party, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed the Transactions or any similar transaction involving the sale of the Company to, or combination of the Company with, any other Person, or (c) the Company determines in good faith that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries (the Company Subsidiaries, or violate applicable Law or result in significant antitrust risk for the Company or any of the Company Subsidiaries, as applicable; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions such information as is necessary to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information permit disclosure to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated December 22, 2014 between the Company and Parent (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its (and its Subsidiaries') properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by any of them pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by any of them with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, agentsoperations, properties, offices prospects, personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, (A) all financial records, ledgers, workpapers and other facilities sources of financial information processed or controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and the Company and its Subsidiaries taken as a whole and certifying financial statements and financial information and (B) all other information relating to the books Company, its Subsidiaries and records thereof Stockholders that VIALOG or its Representatives requires, in either case for inclusion in or in support of the Financing Document, and (including iii) such other information concerning any of the foregoing as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for purposes the benefit of conducting regulatory compliance reviews the parties hereto, VIALOG will hold and audits will use commercially reasonable efforts to allow Parent cause the Representatives of VIALOG to be in compliance with its policies hold, and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required will hold and will use commercially reasonable efforts to provide access to or disclose any such information to cause the extent such access or disclosure would result in the loss of attorney-client privilege Representatives of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determineshold, in light of COVID-19, that such access would jeopardize the health strict confidence all non-public documents and safety of any employee of the Company information furnished (whether prior or its Subsidiaries subsequent hereto) to VIALOG or to the extent necessary to comply with applicable Laws.
(b) Without limiting Company, as the generality of the foregoingcase may be, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementMerger and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) The Company and VIALOG acknowledge that the Company and VIALOG executed one or more Confidential Disclosure Agreements (collectively, the "Confidentiality Letter"), which separately and as incorporated in this Agreement will remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company by VIALOG, or its Representatives or by the Company or its Representatives from VIALOG pursuant to Section 6.1(a), the Confidentiality Letter or otherwise will be subject to the provisions of the Confidentiality Letter.
(d) No investigation pursuant to this Section 7.03 shall 6.1 will affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Call Points Inc), Agreement and Plan of Reorganization (Call Points Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement hereof until the Effective TimeClosing Date, the Company shall, and Sellers shall cause its the Acquired Companies and the Acquired Company Subsidiaries to, provide to Parent afford to Buyer and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnelrepresentatives of Buyer reasonable access upon reasonable advance notice at reasonable times during normal business hours to all of the Acquired Companies’ and the Acquired Company Subsidiaries’ properties, agentsbooks, contracts and records, and Sellers shall cause the Acquired Companies and the Acquired Company Subsidiaries to furnish to Buyer such information concerning their business, properties, offices financial condition, operations and personnel as Buyer may from time to time reasonably request, other facilities of the Company and its Subsidiaries and to the books than any such properties, books, contracts and records thereof that (including for purposes a) are subject to an attorney-client or other legal privilege or (b) are subject to an obligation of conducting regulatory compliance reviews and audits confidentiality or privacy provided that, if applicable, Sellers shall use commercially reasonable efforts to allow Parent obtain the consent of any third party to be in compliance with its policies and procedures and waive any applicable Law at the Effective Time)such confidentiality or privacy obligations; provided, however, that (x) the Company Buyer’s investigation shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure conducted in a manner that that: (i) is in compliance with applicable Requirements of Law; (ii) does not result in a loss the disclosure of attorney-client privilege) any trade secrets of third parties or any trade secrets of Sellers or of any of their Affiliates; and (yiii) does not unreasonably interfere with the normal operations, customers and employee relations of any Seller or any Affiliate of such Seller (including the Acquired Companies and the Acquired Company may limit physical access Subsidiaries). To the extent any material is withheld due to a claim of privilege, confidentiality or privacy, Sellers shall cause the properties, offices Acquired Companies and other facilities of the Acquired Company and its Subsidiaries to give Buyer a list identifying the extent nature of such items and stating the Company reasonably determinesnature of claim of privilege, in light of COVID-19, that such confidentiality or privacy. All requests for access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 4.2 shall be kept confidential directed to such Person or Persons as Sellers shall designate. Any information obtained by Buyer and by the officers, employees and other representatives of Buyer with respect to Sellers and their Affiliates shall be subject to the terms and conditions set forth in accordance with the Confidentiality Agreement.
, the terms and conditions of which are incorporated herein by reference. Sellers shall permit Buyer and representatives of Buyer to consult with Milliman and to have access to Milliman for the purpose of performing work requested by Buyer (e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations extent Milliman agrees to provide such consultation or work to Buyer). Buyer shall pay all of the parties heretofees and expenses incurred by Sellers and their Affiliates in connection with any such consultation or work performed by Milliman.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Protective Life Insurance Co), Stock Purchase Agreement (Protective Life Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from Laws relating to the date exchange of this Agreement until the Effective Timeinformation, the Company shall, and shall cause each of its Subsidiaries to, provide afford to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to all of the Company’s and its Subsidiaries’ commitments, books, Contracts, records and correspondence (in each case, whether in physical or electronic form), officers, employees, accountants, counsel, financial advisors and other Representatives and the Company shall furnish promptly to Parent (i) a copy of each report, schedule and other document filed or submitted by the Company pursuant to the officersrequirements of Federal or state securities Laws to the extent not available to the public through the SEC’s XXXXX system (and the Company shall deliver to Parent a copy of each report, employees schedule and other personnel, agents, properties, offices document proposed to be filed or submitted by the Company pursuant to the requirements of Federal securities Laws not less than five (5) business days prior to such filing) and a copy of any communication (including “comment letters”) received by the Company from the SEC concerning compliance with securities Laws and (ii) all other facilities of information concerning the Company and its Subsidiaries Subsidiaries’ businesses, properties and personnel as Parent may reasonably request. Except for disclosures permitted by the terms of the Confidentiality Agreement, dated as of April 1, 2010, between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”), Parent and its Representatives shall hold information received from the Company pursuant to this Section 5.6 in confidence in accordance with the terms of the Confidentiality Agreement.
(b) Subject to the books conditions in Section 5.6(a), (i) access for Parent and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company Representatives shall not be required to provide include access to or disclose any such information all material environmentally related audits, studies, reports, analyses and results of investigations performed with respect to the extent such access currently or disclosure would result in the loss of attorney-client privilege previously owned, leased or operated properties of the Company or any of its Subsidiaries and (provided that the Company ii) Parent and its Subsidiaries Representatives shall use their reasonable best efforts have the right to allow for such access conduct (or disclosure in a manner that does not result in a loss of attorney-client privilegecause an environmental consultant to conduct) Phase I Environmental Site Assessments and (y) the Company may limit physical access to the propertiescompliance audits at any real property owned, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company operated or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including leased by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that Subsidiaries, subject to any restrictions imposed in current leases, and the Company and its Subsidiaries shall use their reasonable best efforts to provide such information cooperate in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeconnection therewith.
(c) Except as otherwise prohibited by applicable LawNo investigation, from the date of this Agreement until the Effective Timeor information received, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with 5.6 will modify any of the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations representations and warranties of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Ladish Co Inc), Merger Agreement (Allegheny Technologies Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawUpon reasonable notice, from the date Company shall afford to Parent and Parent’s officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, “Representatives”) reasonable access during normal business hours, throughout the period prior to the earlier of this Agreement until the Effective TimeTime or the Termination Date, to the Company’s and its Subsidiaries’ properties, Contracts, commitments, books and records and the Company shall, and shall cause each of its Subsidiaries to, provide (i) furnish promptly to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice a copy of any report, schedule or other document filed or received by it pursuant to the officers, employees requirements of federal or state Laws and (ii) use reasonable best efforts to cause its Representatives to furnish promptly to Parent such additional financial and operating data and other personnel, agents, properties, offices and other facilities of the Company information as to its and its Subsidiaries Subsidiaries’ respective businesses and properties as Parent or its Representatives may from time to the books and records thereof time reasonably request (including for purposes furnishing the Company’s financial results to Parent in advance of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and filing any applicable Law at the Effective TimeCompany SEC Documents containing such financial results); provided, however, except that (x) the Company nothing herein shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of require the Company or any of its Subsidiaries to disclose information to Parent to the extent that (A) the Company determines, in its reasonable judgment, would be reasonably likely to cause a violation of any Contract to which the Company is a party (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to obtain the required consent of the necessary party to such access or disclosure), (B) the Company determines, in its reasonable judgment, would be reasonably likely to cause a risk of a loss of attorney-client privilege to the Company (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of any attorney-client privilege), (C) relates to the negotiation and execution of this Agreement or, subject to Section 5.5, to any Company Alternative Transaction Proposal, (yD) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light its reasonable judgment, would be reasonably likely to expose the Company to risk of COVID-19liability for disclosure of sensitive or personal information, that or (E) the Company determines, in its reasonable judgment, would be reasonably likely to constitute a violation of applicable Laws. All requests for information pursuant to this Section 5.3(a) shall be directed to an executive officer or other Person designated by the Company. Notwithstanding anything to the contrary herein, Parent shall not conduct any activities pursuant to this Section 5.3(a) in such access would jeopardize a manner as to interfere unreasonably with the health and safety of any employee business or operations of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsCompany.
(b) Without limiting Upon reasonable notice, Parent shall afford the generality Company and its Representatives reasonable access during normal business hours, throughout the period prior to the earlier of the foregoingEffective Time or the Termination Date, to Parent’s and its Subsidiaries’ properties, Contracts, commitments, books and records and Parent shall, and shall cause each of its Subsidiaries to, (i) furnish promptly to the Company covenants a copy of any report, schedule or other document filed or received by it pursuant to the requirements of federal or state Laws and agrees that, between the date of this Agreement and the Effective Time, (ii) use reasonable best efforts to cause its Representatives to furnish promptly to the Company shall keep Parent reasonably informed such additional financial and operating data and other information as to its and its Subsidiaries’ respective businesses and properties as the CompanyCompany or its Representatives may from time to time reasonably request (including furnishing Parent’s FDA regulatory strategy with respect financial results to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and the Company in advance of filing any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-goingParent SEC Documents containing such financial results), and medical technology, including by providing copies of material information to Parent; provided, except that the Company nothing herein shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company require Parent or any of its Subsidiaries to disclose information to the Company to the extent that (A) Parent determines, in its reasonable judgment, would be reasonably likely to cause a violation of any Contract to which Parent is a party (provided that the Company and its Subsidiaries Parent shall use their its reasonable best efforts to provide obtain the required consent of the necessary party to such information access or disclosure), (B) the Company determines, in its reasonable judgment, would be reasonably likely to cause a risk of a loss of any attorney-client privilege to Parent (provided that Parent shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege), (C) relates to the negotiation and execution of this Agreement or, subject to Section 5.5, to any Parent Alternative Transaction Proposal, (D) Parent determines, in its reasonable judgment, would be reasonably likely to expose Parent to risk of liability for disclosure of sensitive or personal information, or (E) Parent determines, in its reasonable judgment, would be reasonably likely to constitute a violation of applicable Laws. In order All requests for information pursuant to keep Parent reasonably informed regarding this Section 5.3(b) shall be directed to an executive officer or other Person designated by Parent. Notwithstanding anything to the Company’s regulatory relationship with FDAcontrary herein, the Company also agrees shall not conduct any activities pursuant to this Section 5.3(b) in such a reasonably timely manner provide Parent as to interfere unreasonably with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new the business or on-going), medical technology and any other subject which would likely have a material impact on operations of the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from The parties agree that each of them will treat any information received pursuant to this Section 5.3 in accordance with the date of this Confidentiality Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to between the Company and Parent, dated as of October 3, 2016 (as amended, the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior “Confidentiality Agreement”). No representation as to the date hereof accuracy of any information provided pursuant to this Section 5.3 is made, and the parties may not rely on the accuracy of any such information other than as expressly set forth in connection with the Company’s due diligence review of Parent representations and its Subsidiaries warranties in connection with the TransactionsArticle III and Article IV. No information obtained pursuant to this Section 5.3 shall be deemed to modify any representation or warranty in Article III or Article IV.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition Subject to the obligations terms of Section 5.3(a) in all respects, the Company shall cooperate and participate, as reasonably requested by Parent from time to time, in Parent’s efforts to plan the integration of the parties heretoparties’ operations in connection with, and taking effect upon consummation of, the Combination subject to applicable Law, including providing such reports on operational matters and participating on such integration planning teams and committees as Parent may reasonably request and taking the actions set forth on Section 5.3(a) of the Parent Disclosure Letter.
Appears in 2 contracts
Samples: Merger Agreement (EarthLink Holdings Corp.), Merger Agreement (Windstream Holdings, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to the applicable Lawlimitations (if any) in Sections 5.1 and 5.4, from between the date of this Agreement until hereof and the Effective TimeClosing Date, the Company shallwill, and shall will cause each of its Subsidiaries to, provide and will use commercially reasonable efforts to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the cause their respective officers, employees and other personnelrepresentatives to, agents, properties, offices provide Purchaser and other facilities of its Affiliates and their authorized representatives and Purchaser’s financing sources with all information (financial and otherwise) concerning the Company and its Subsidiaries as reasonably requested from time to time by Purchaser or Parent, including but not limited to all information reasonably necessary for inclusion in the prospectus and shareholder circular to be delivered by Parent to its shareholders in connection with the Merger and the Rights Issue (the “Parent Shareholders Circular”) in connection with Parent’s convening of an extraordinary general meeting (including any postponement or adjournment thereof, the “EGM”) in order to solicit the Parent Shareholder Approval. Subject to the books applicable limitations (if any) in Sections 5.1 and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided5.4, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any will, will cause each of its Subsidiaries to, and will use commercially reasonable efforts to cause their respective directors, officers, employees and representatives to, provide all cooperation reasonably necessary in connection with the EGM of shareholders of Parent to approve the transactions expressly contemplated by this Agreement, including (provided i) reasonably cooperating in the preparation of the Parent Shareholders Circular (as required to be amended from time to time) such that the information relating to the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in a loss of attorney-client privilege) and (y) order to make the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determinesstatements therein, in light of COVID-19the circumstances under which they were made, that such access would jeopardize the health not misleading, (ii) reasonably cooperating in Parent’s and safety of any employee Purchaser’s preparation of the Company or its Subsidiaries or to Parent Shareholders Circular and audited and other financial statements complying with the extent necessary to comply with requirements of applicable Laws.
(b) Without limiting Law and the generality rules and regulations of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy U.K. Financial Services Authority with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAthe Parent Shareholders Circular, and any (iii) taking such other regulatory issues under consideration for presentation actions as are reasonably necessary to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including be taken by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the TransactionsEGM.
(db) All Any information obtained by the parties hereto Parent, Purchaser, Merger Sub or any of their Subsidiaries or any of their respective directors, officers, employees or representatives pursuant to paragraph (a) above or pursuant to any other Section of this Section 7.03 Agreement shall be kept confidential subject to that certain Mutual Nondisclosure Agreement, dated January 9, 2007 between Purchaser and the Company, the terms of which are incorporated herein by reference (the “Confidentiality Agreement”) and none of Parent, Purchaser, Merger Sub or any of their Subsidiaries or any of their respective directors, officers, employees or representatives shall publicly disclose any such information without the prior written consent of the Company, except as required by applicable Law to be included in accordance with the Parent Shareholders Circular or as otherwise permitted to be disclosed by the Confidentiality Agreement. Effective upon, and only upon, the Closing, Purchaser’s obligations under the Confidentiality Agreement shall terminate with respect to information relating to the Company and its Subsidiaries.
(ec) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement Notwithstanding anything in this Agreement of to the contrary, in no event will any party hereto provision hereof obligate the Company or any condition of its Subsidiaries, or any of their respective directors, officers, employees or representatives to provide Parent, Purchaser or Merger Sub or any of Parent’s Subsidiaries or any of their respective directors, officers, employees or representatives with any information if the provision of such information is contrary to applicable Law or otherwise requires the provision of material commercially sensitive data, in which case (and subject to the obligations of obligation) the parties heretoand such other Persons will negotiate in good faith with respect to the provision of such information, directly or indirectly, in a manner consistent with applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (K&f Industries Inc), Merger Agreement (Meggitt USA Inc)
Access to Information; Confidentiality. (a) Except (i) as otherwise prohibited by applicable Law, from Law or the date terms of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide any Contract or (ii) as would be reasonably expected to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of any attorney-client client, attorney work product, or other legal privilege of the Company or any of its Subsidiaries (provided provided, that the Company and its Subsidiaries Entities shall use their reasonable best efforts to allow for the disclosure of such access information (or disclosure as much of it as reasonably possible) in a manner that does not not, in the case of clause (i), result in a violation of Law or the terms of any Contract (and so long as the Company Entities have used, or has caused the Company Subsidiaries, as applicable, to use, reasonable best efforts to obtain a waiver with respect to such violation of Contract), or, in the case of clause (ii), result in a loss of attorney-client attorney work product or other legal privilege) and (y) ), during the Pre-Closing Period, subject to the restrictions or limitations as are reasonable in response to any Pandemic, including the adoption of any Pandemic Measures, the Company may limit physical access Entities shall and shall cause the Company Subsidiaries and their respective Representatives to, solely for purposes that are, in good faith, related to the propertiesconsummation of the Mergers (or the financing of the Transactions) or the post-Closing operations, financing or integration of the Surviving Company and its Subsidiaries with the Parent Entities and their Affiliates, and at the Parent Entities’ expense: (x) provide to the Parent Entities and their respective Representatives (including Debt Financing Sources and Preferred Equity Investors) reasonable access, during normal business hours and upon reasonable prior notice to the Company Entities by the Parent Entities, to the officers, employees, properties and offices and other facilities of the Company Entities and its Subsidiaries the Company Subsidiaries, and to the extent material books and records thereof and (y) furnish promptly to the Company reasonably determinesParent Entities such information concerning the business, in light of COVID-19properties, that such access would jeopardize the health Contracts, assets, liabilities and safety of any employee personnel of the Company Entities and the Company Subsidiaries as the Parent Entities or its their respective Representatives may reasonably request. In the event that the Company Entities or the Company Subsidiaries are withholding access or to information requested by the extent necessary to comply Parent Entities or their respective Representatives in accordance with applicable Laws.
clauses (bi) Without limiting the generality or (ii) of the foregoingfirst sentence of this Section 7.02, the Company covenants and agrees thatEntities shall give notice to the Parent Entities of such fact, between shall use reasonable best efforts to effect reasonable substitute virtual access or disclosure arrangements. Nothing in this Section 7.02 shall be construed to require the date of this Agreement and the Effective TimeCompany Entities, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and Subsidiaries or any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required their respective Representatives to provide such (I) any of the foregoing information to the extent providing such information would result related to the negotiation of this Agreement or, except as expressly set forth in the loss of attorney-client privilege Section 7.03, any Acquisition Proposal or any deliberation of the Company Executive Committee or the Special Committee regarding any of its Subsidiaries Acquisition Proposal or Adverse Recommendation Change, as applicable or (provided that II) any opinion to the Company and its Subsidiaries Parent Entities. Any investigation conducted pursuant to the access contemplated by this Section 7.02 shall use their reasonable best efforts to provide such information be conducted in a manner that does not result in a loss (A) unreasonably interfere with the conduct of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy business of the Company Entities and the Company Subsidiaries or its otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company Entities or the Company Subsidiaries prior of their normal duties or (B) create a risk of damage or destruction to any property or assets of the Company Entities or the Company Subsidiaries. Any access to the Effective Timeproperties of the Company Entities and the Company Subsidiaries will be subject to such Company Entity’s or Company Subsidiary’s reasonable security measures and insurance requirements. All requests for access pursuant to this Section 7.02 must be directed to specified Representatives of the Company Entities from time to time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All information obtained by the parties hereto Parent Entities, the Merger Subs or their respective Representatives pursuant to this Section 7.03 Article VII shall be kept confidential in accordance with the amended and restated mutual nondisclosure agreement, dated November 2, 2023 (the “Confidentiality Agreement”), between Silver Lake Technology Management, L.L.C. and the Company.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the period prior notice to the officersearlier of the Effective Time or the termination of this Agreement to its properties, employees books and other records, Contracts and personnel, agentsand, propertiesduring such period, offices and other facilities of the Company shall furnish, as promptly as reasonably practicable, to Parent such information concerning its business, properties and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to or Parent’s Representatives may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (i) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (ii) such information relates to the applicable portions of the minutes of the meetings of the Company Board or the Special Committee (including any presentations or other materials prepared by or for the Company Board or the Special Committee) where the Company Board or the Special Committee discussed (or is information otherwise related to) (A) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, the license of a material portion of the Company’s assets to, or combination of the Company with, any other Person, (B) any Company Takeover Proposal or (C) any Intervening Event, or (iii) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Company, violate applicable Law or any of its Subsidiaries (result in antitrust risk for the Company; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as is necessary to the extent providing permit disclosure to Parent without jeopardizing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by violating applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) as applicable. All information obtained by the parties hereto exchanged pursuant to this Section 7.03 7.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated November 11, 2023 between the Company and Parent, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (XOMA Corp), Merger Agreement (Kinnate Biopharma Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until to the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Article 7, the Company shall, and shall cause its the Company Subsidiaries to, to (i) provide to Parent and Parent’s Representatives Merger Sub and their respective officers, directors, employees, accountants, consultants, legal counsel, investment bankers, advisors, financing sources (including the Financing Sources) and authorized agents (collectively, the “Parent Representatives”) reasonable access access, during normal business hours in such a manner as not to interfere unreasonably with the operation of any business conducted by the Company and the Company Subsidiaries, upon reasonable prior written notice to the Company, to the officers, employees and other personnel, agentsemployees, properties, Company Permits, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records thereof thereof, (including for purposes of conducting regulatory compliance reviews and audits ii) use commercially reasonable efforts to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any furnish during normal business hours upon prior notice such information to concerning the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the business, properties, offices Contracts, Company Permits, personnel, assets and other facilities liabilities of the Company and its Subsidiaries to the extent the Company Subsidiaries as Parent or the Parent Representatives may reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parentrequest; provided, provided that the Company shall not be required to provide (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent providing such information that the Company believes, in its reasonable good faith judgment, that doing so would (A) result in the loss of attorney-client privilege client, work product or other privilege, (B) result in the disclosure of any trade secrets of third parties or violate any obligations of the Company or any of its Subsidiaries Company Subsidiary with respect to confidentiality to any Third Party, or otherwise breach, contravene or violate any such effective Contract to which the Company or any Company Subsidiary is a party or (provided C) breach, contravene or violate any applicable Law (including Competition Laws); provided, that the Company and its Subsidiaries shall use their its reasonable best efforts to provide cause such information to be provided in a manner that does would not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding violate the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeforegoing.
(cb) Except as otherwise prohibited by applicable Law, from the date Each of Parent and Merger Sub hereby agrees that all information provided to it or any Parent Representatives in connection with this Agreement until and the Effective Time, Parent shallconsummation of the transactions contemplated hereby shall be deemed to be “Information,” as such term is used in, and shall cause its Subsidiaries tobe treated in accordance with, provide to the confidentiality agreement, effective as of March 7, 2018, between the Company and Parent (the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company shallTarget shall afford to Acq Corp, and shall cause its Subsidiaries toto Acq Corp's officers, provide to Parent employees, accountants, counsel, financial advisers and Parent’s Representatives other representatives, reasonable access during normal business hours upon reasonable prior notice to during the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries period prior to the Effective Time.
Time to all the properties, books, contracts, commitments and records of Target and its Subsidiaries and, during such period, Target shall furnish promptly to Acq Corp (ca) a copy of each report, schedule, registration statement and other document filed by it or its Subsidiaries during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its or its Subsidiaries' business, properties and personnel as Acq Corp may reasonably request. Except as otherwise prohibited agreed to by applicable LawTarget, from the date notwithstanding termination of this Agreement until the Effective TimeAgreement, Parent shallAcq Corp will keep, and shall will cause its Subsidiaries toofficers, provide employees, accountants, counsel, financial advisers and other representatives and affiliates to the Company keep, all Confidential Information (as defined below) confidential and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice not to Parent’s personnel disclose any Confidential Information to any Person other than Acq Corp's or Acq Corp's directors, officers, employees, affiliates or agents, and records then only on a basis consistent with the Company’s access confidential basis; PROVIDED, HOWEVER, that Acq Corp may disclose Confidential Information (i) as required by law, rule, regulation or judicial process, including as required to such personnel and records prior to the date hereof be disclosed in connection with the Company’s due diligence review Merger, the Registration Statement and the Other Filings, (ii) to its attorneys, accountants and financial advisors or (iii) as requested or required by any Governmental Entity. For purposes of Parent and this Agreement, "CONFIDENTIAL INFORMATION" shall include all information about Target which has been furnished by Target to Acq Corp; PROVIDED, HOWEVER, that Confidential Information does not include information which (x) is or becomes generally available to the public other than as a result of a disclosure by Acq Corp, its Subsidiaries in connection attorneys, accountants or financial advisors not permitted by this Agreement, (y) was available to Acq Corp on a non-confidential basis prior to its disclosure to Acq Corp by Target or (z) becomes available to Acq Corp on a non-confidential basis from a Person other than Target who, to the Knowledge of Acq Corp, is not otherwise bound by a confidentiality agreement with Target or is not otherwise prohibited from transmitting the Transactions.
(d) All relevant information obtained by to Acq Corp. In the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in event of termination of this Agreement of for any party hereto or any condition reason, Acq Corp shall promptly return all Confidential Information to the obligations of the parties heretoTarget.
Appears in 2 contracts
Samples: Merger Agreement (Harveys Casino Resorts), Merger Agreement (Harveys Acquisition Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from During the date of this Agreement until the Effective Time, Pre-Closing Period the Company shall, and shall cause its Subsidiaries to, provide to (i) afford Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) to all of its and the officersCompany Subsidiaries’ properties, employees books and other records, Contracts, personnel, agentsadvisors and facilities, propertiesand (ii) furnish, offices as promptly as reasonably practicable, to Parent all information concerning its and other facilities of the Company Subsidiaries’ business, properties and its Subsidiaries and to personnel as Parent may reasonably request. Notwithstanding the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, or combination of the Company with, any other Person, (ii) any Company Takeover Proposal or (iii) any Intervening Event, (c) the Company in good faith determines, light of any COVID-19 Responses, that such access would reasonably be expected to jeopardize the health or safety of any employee of the Company or the Company Subsidiaries or any of the Company’s Representatives or (d) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company or any violate applicable Law; provided that, in the case of its Subsidiaries clauses (provided that a) and (d), the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and/or otherwise take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a loss of attorney-client privilegesimilar arrangement) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as is necessary to the extent providing permit disclosure to Parent without jeopardizing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege)violating applicable Law or confidentiality agreement. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated December 12, 2021 between the Company and Parent, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by it pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by it with any Authority in connection with the Transactions or which may have a material effect on its business, agentsoperations, properties, offices personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, all financial records, ledgers, workpapers and other facilities sources of financial information processed or Controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and its Subsidiaries certifying financial statements and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedfinancial information, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (yiii) the Company may limit physical access to the properties, offices and such other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to concerning the Company and the Company’s Stockholders as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for the benefit of the parties hereto, VIALOG will hold and will use commercially reasonable efforts to cause the Representatives of VIALOG to hold, and the Company will hold and will use commercially reasonable access during normal business hours upon reasonable efforts to cause the Representatives of the Company to hold, in strict confidence all non-public documents and information furnished (whether prior notice or subsequent hereto) to Parent’s personnel and records on a basis consistent with VIALOG or to the Company’s access to such personnel and records prior to , as the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries case may be, in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementMerger and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) The Company and VIALOG acknowledge that the Company and VIALOG executed one or more Confidential Disclosure Agreement (collectively, the "Confidentiality Letter"), which separately and as incorporated in this Agreement will remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company by VIALOG, or its Representatives or by the Company or its Representatives from VIALOG pursuant to Section 6.1(a), the Confidentiality Letter or otherwise will be subject to the provisions of the Confidentiality Letter.
(d) No investigation pursuant to this Section 7.03 shall 6.1 will affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its each of the Company Subsidiaries to, provide afford to Parent and to Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to (under the officers, employees supervision of appropriate personnel and other personnel, agents, properties, offices and other facilities in a manner that does not unreasonably interfere with the normal operation of the business of the Company and its Subsidiaries and the Company Subsidiaries) during the period prior to the Effective Time to all their respective properties, books and records thereof (including for purposes of conducting regulatory compliance reviews and audits Contracts and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish, as promptly as reasonably practicable, to allow Parent to be in compliance with all information concerning its policies business, properties and procedures and any applicable Law at the Effective Time)personnel as Parent may reasonably request; provided, however, that (x) Parent shall reimburse the Company for any reasonable out-of-pocket expenses incurred by the Company or any Company Subsidiary arising out of affording any such access and furnishing any such information. Notwithstanding the immediately preceding sentence, neither the Company nor any of the Company Subsidiaries shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality obligation with a third party entered into prior to the date of this Agreement, (b) relating to the applicable portions of the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board or any committee thereof) where the Company Board or such committee, as applicable, discussed the Transactions or any similar transaction between the Company and any other Person or (c) the Company determines in good faith that affording such access or disclosure would furnishing such information would: (i) result in the loss disclosure of Trade Secrets of third parties, (ii) expose the Company to risk of liability under Data Protection Laws for disclosure of personal information, (iii) jeopardize the attorney-client privilege of the Company or any of its the Company Subsidiaries or (provided iv) violate applicable Law; provided, in the case of clauses (a) and (c), that the Company and its Subsidiaries shall use their its commercially reasonable best efforts to allow for make alternative arrangements to afford such access or disclosure in a manner that does not result in a loss of furnish such information without breaching such confidentiality obligation, jeopardizing such attorney-client privilege) , violating applicable Law or resulting in such disclosure or risk of liability, as applicable, provided further that information will be disclosed subject to execution of a joint defense agreement in customary form, and (y) the Company disclosure may limit physical access be limited to the propertiesexternal counsel for Parent, offices and other facilities of the Company and its Subsidiaries to the extent the Company determines doing so may be reasonably determinesrequired for the purpose of complying with applicable Antitrust Laws. Notwithstanding anything to the contrary in this Section 5.02, any physical access may be limited to the extent the Company determines in good faith that such limitation is necessary in light of COVID-19COVID-19 or any COVID-19 Measures, that including if providing such access would jeopardize reasonably be expected to pose a material risk to the general health and safety of any employee employees of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants Subsidiary and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall which cannot be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their mitigated with commercially reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege)measures. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 5.02 shall be kept confidential in accordance with subject to the confidentiality letter agreement, dated June 27, 2022, between the Company and Parent (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Global Blood Therapeutics, Inc.)
Access to Information; Confidentiality. (a) Except Prior to the Closing, upon reasonable prior written notice and subject to applicable Laws relating to the exchange of information and confidentiality obligations applicable to information furnished to the Company or any of its Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession from time to time (it being agreed that the Company shall, and shall cause its Subsidiaries to, make reasonable and appropriate substitute disclosure arrangements under circumstances in which such Laws or confidentiality obligations apply), the Company shall, and shall cause each of the Company’s Subsidiaries to, afford to the Representatives of Parent, during normal business hours and in a manner as otherwise prohibited by applicable Lawto not unreasonably interfere with the normal operation of the Company and its Subsidiaries, from during the date period prior to the Closing Date, reasonable access to the Company’s and each of this Agreement until the Effective Timeits Subsidiaries’ properties, assets, books, Contracts and records, and to their officers, accountants, counsel and other Representatives and, during such period, the Company shall, and shall cause its Subsidiaries to, provide make available to Parent such information concerning their businesses, properties and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice personnel as Parent may reasonably request in connection with the consummation of the transactions contemplated by this Agreement; provided, however, that (i) Parent shall not perform, or request or cause to be performed, intrusive soil or groundwater sampling at any property of the Company or its Subsidiaries, (ii) such right shall not apply to information subject to an attorney-client privilege (to the officers, employees extent disclosure would jeopardize such privilege) and other personnel, agents, properties, offices and other facilities of (iii) the Company and its Subsidiaries need not supply any information which, in the reasonable judgment of the Company or any of its Subsidiaries is under a contractual or legal obligation not to supply; provided, however, that, at Parent’s reasonable request, the Company shall use its commercially reasonable efforts to seek the consent of any party whose consent is required to remove any contractual restriction on disclosure to Parent. The Company shall have the right to have one or more of its Representatives present at all times during any such reviews, examinations or discussions. Prior to the Closing, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), Parent shall not, and Parent shall cause its Representatives not to, contact any customers, suppliers or competitors of the Company or its Subsidiaries regarding the business, operations or prospects of the Company or regarding this Agreement or the transactions contemplated hereby; provided, however, that the Company and Parent shall cooperate in good faith to develop and implement a customer and supplier communication plan relating to the transactions contemplated by this Agreement.
(b) Prior to the Closing, (i) any information provided to or obtained by Parent pursuant to this Section 7.4 or any other provision of this Agreement will be subject to the Confidentiality Agreement and shall be held by Parent in accordance with and be subject to the terms and conditions of the Confidentiality Agreement, and (ii) Parent agrees to be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein, which provisions are hereby incorporated herein by reference.
(c) From and after the Closing, for any reasonable business purpose relating to the Shareholders’ ownership of the capital stock of the Company or any of its Subsidiaries, including preparation of governmental or regulatory reporting obligations, for a period of seven (7) years (or such longer period as may be required by applicable Laws) after the Closing, (i) Parent shall cause the Company and its Subsidiaries to retain the books and records thereof relating to the Company and its Subsidiaries with respect to periods prior to the Closing in accordance with Parent’s customary internal document retention practices, and (including for purposes ii) upon reasonable advance notice and subject to applicable Laws relating to the exchange of conducting regulatory compliance reviews information and audits confidentiality obligations applicable to allow Parent information furnished to Parent, the Company or any of their respective Subsidiaries by third parties that may be in compliance any of their possession from time to time (it being agreed that Parent shall cause the Company and its Subsidiaries to make reasonable and appropriate substitute disclosure arrangements under circumstances in which such Laws or confidentiality obligations apply), Parent and the Company shall, and shall cause each of the Company’s Subsidiaries to, afford to the Shareholders and their respective Representatives, during normal business hours following the Closing Date, and in a manner as to not unreasonably interfere with the normal operation of Parent, the Company and their respective Subsidiaries, reasonable access to the Company’s and each of its policies Subsidiaries’ properties, books, Contracts and procedures records, and any applicable Law at to their officers, employees, accountants, counsel and other Representatives and, during such period, the Effective Time)Company shall, and shall cause its Subsidiaries to, make available to the Shareholders all information concerning their businesses, properties and personnel as they may reasonably request for the purposes described above; provided, however, that (x) the Company such right shall not be required apply to provide access information subject to or disclose any such information to the extent such access or disclosure would result in the loss of an attorney-client privilege (to the extent disclosure would jeopardize such privilege), (y) this Section 7.4(c) shall not apply to Tax Returns and related information which shall be governed by Section 7.2(g) and (z) Parent, the Company and its Subsidiaries need not supply any information which, in the reasonable judgment of Parent, the Company or any of their respective Subsidiaries, is under a contractual or legal obligation not to supply; provided however that at the reasonable request of the Shareholder Representative, the Company shall use its commercially reasonable efforts to seek the consent of any party whose consent is required to remove any contractual restriction on disclosure to the Shareholders. Parent shall have the right to have one or more of its Representatives present at all times during any such reviews, examinations or discussions.
(d) For a period of five years following the Closing Date (and, in the case of books and records of the Company or any Subsidiary provided or otherwise made available to any Shareholder or any of its Subsidiaries Representatives following the Closing Date pursuant to any provision of this Agreement, a period of five years following the date such books and records are provided or otherwise made available), each Shareholder shall, and shall cause each of its affiliates to, (provided that i) treat all confidential information relating to the Company and the Subsidiaries as confidential, preserve the confidentiality thereof, and not use or disclose to any Person such confidential information and (ii) cause its Subsidiaries shall Representatives who have had access to such information to keep it confidential and not to use their reasonable best efforts or disclose to allow for any Person any such access information, unless such information (A) is or disclosure becomes publicly available or is now or hereafter disclosed in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determinesmaking it publicly available, in light each case through no act or omission in violation hereof of COVID-19, that such access would jeopardize the health and safety of any employee of the Company Shareholder or its Subsidiaries affiliates or to the extent necessary to comply with Representatives, or (B) is required by applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees Law; provided that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege Trade Secrets of the Company or any Subsidiary, the foregoing covenant shall survive indefinitely. If the disclosure of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited required by applicable Law, from such Shareholder shall cooperate with and, to the date of this Agreement until extent reasonably practicable and not prohibited by Law, provide Parent an opportunity to object to the Effective Time, Parent shall, disclosure and shall cause its Subsidiaries togive Parent as much prior written notice as is reasonably practicable under the circumstances. If requested by Parent, provide to the Company and the Company’s Representatives such Shareholder shall use commercially reasonable access during normal business hours upon reasonable prior notice to efforts, at Parent’s personnel and records on a basis consistent with the Company’s access expense, to obtain reliable assurance that confidential treatment will be accorded to any such personnel and records prior information required by applicable Law to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsbe disclosed.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ashland Global Holdings Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the Effective Time, upon reasonable notice and subject to Applicable Law, the Company shall, and shall cause its Subsidiaries to, provide (i) give to Parent Parent, its counsel, financial advisors, auditors and Parent’s Representatives other authorized representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agentsits offices, properties, offices books, Contracts and records, (ii) furnish as promptly as reasonably practicable to Parent, its counsel, financial advisors, auditors and other facilities of the Company authorized representatives such financial and its Subsidiaries operating data and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be other information as such Persons may reasonably request, in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any each case unless furnishing such information to the extent such access would constitute a violation of Applicable Law or disclosure would result in the loss of attorney-client privilege any confidentiality obligations of the Company or any of its Subsidiaries (pursuant to contracts; provided that the Company and its Subsidiaries shall use their commercially reasonable best efforts to allow for cause the beneficiaries of any such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access confidentiality obligations to the properties, offices and other facilities of provide any consent necessary to permit the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that furnish such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAinformation, and any (iii) instruct its employees, counsel, financial advisors, auditors and other regulatory issues under consideration for presentation authorized representatives to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parentreasonably cooperate with Parent in its investigation; provided, however, that (1) the Company shall not be required to provide afford such information to the extent providing such information access if it would result in the unreasonably disrupt its operations or those of any of its Subsidiaries or would cause a risk of a loss of attorney-client privilege of to the Company or any of its Subsidiaries or would constitute a violation of any Applicable Law and (provided 2) Parent shall not have access to individual performance or evaluation records, medical histories or other information that in the reasonable opinion of the Company and is sensitive or the disclosure of which could reasonably be expected to subject the Company or any of its Subsidiaries shall use their reasonable best efforts to provide such risk of liability or information in a manner that does not result in a loss of is subject to attorney-client privilege or other privilege). In order All such access shall be subject to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees reasonable restrictions imposed from time to in a reasonably timely manner provide Parent with any and all material communications with FDA time with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new the provision of privileged communications or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future businessapplicable confidentiality agreement with any Person. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No Any investigation pursuant to this Section 7.03 6.04 shall be conducted in such manner as not to unreasonably interfere with the conduct of the business of the Company or damage any property or any portion thereof. All information furnished pursuant to this Section shall be subject to the confidentiality agreement, dated as of April 26, 2012, between Parent and the Company (the “Confidentiality Agreement”). No information or knowledge obtained in any investigation pursuant to this Section 6.04 shall affect or be deemed to modify any representation, warranty, covenant representation or agreement in warranty made by the Company pursuant to this Agreement of any party hereto or any condition to the obligations of the parties heretoAgreement.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawParent and its Subsidiaries, from on the date of this Agreement until the Effective Timeone hand, and the Company shalland its Subsidiaries, on the other hand, shall each afford to the other and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior notice to the Effective Time to their respective officers, employees and other personnelemployees, agentsRepresentatives, properties, offices and other facilities of the Company and its Subsidiaries and to the books books, contracts, commitments, files and records thereof (including for purposes of conducting regulatory compliance reviews and, during such period, shall furnish promptly such information concerning its businesses, properties and audits to allow personnel as the other party shall reasonably request. Notwithstanding the foregoing, neither Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) nor the Company shall not be required to provide access to or disclose any such information which it reasonably believes it may not provide to the extent other party by reason of Contractual or legal restrictions, including applicable Laws, or which it believes is competitively sensitive information, but shall use its best efforts to obtain a consent to disclosure of such access or disclosure would result in information. In addition, each party may designate any competitively sensitive information provided to the loss of attorney-client privilege other under this Agreement as "outside counsel only." Such information shall be given only to outside counsel of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall recipient. Each party will use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access minimize any disruption to the properties, offices and other facilities businesses of the Company other party and its Subsidiaries to that may result from the extent the Company reasonably determinesrequests for access, in light of COVID-19, that such access would jeopardize the health data and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsinformation hereunder.
(b) Without limiting the generality of the foregoing, the The Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep also will consult with Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of regarding its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information business in a prompt manner that does not result in and on a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeregular basis.
(c) Except as otherwise prohibited by applicable LawAll nonpublic information provided to, from or obtained by, a party in connection with the date transactions contemplated hereby shall be "Proprietary Information" for purposes of this Agreement the Confidentiality Agreement, the terms of which shall continue in force until the Effective Time; provided that Parent and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals, Parent shall, the Company Required Statutory Approvals and the Company Stockholder Approval.
(d) The Company shall cause its Subsidiaries to, provide to the Company Parent Financial Advisor and the Company’s Representatives its advisors reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with throughout the Company’s access to such personnel and records period prior to the date hereof in connection with Effective Time to the Company’s 's officers, employees, Representatives, properties, books, contracts, commitments, files and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as the Parent Financial Advisor shall reasonably request for purposes of conducting a customary underwriter due diligence review of Parent and its Subsidiaries in connection with the Transactionsinvestigation.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Upon reasonable notice and subject to Applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide afford to the Company and the Company’s Representatives its Representatives, reasonable access access, during normal business hours upon reasonable prior notice during the period from the date of this Agreement to Parent’s the earlier of the Effective Time or the termination of this Agreement, to all of its properties, books, contracts and records, and, during such period, Parent shall, and shall cause its Subsidiaries to, make available to the Company all other information concerning its businesses, properties and personnel as the Company may reasonably request, and records on a basis consistent instruct its Representatives to reasonably cooperate with the Company’s Company in its investigation. All information furnished pursuant to this Agreement shall be subject to the Confidentiality Agreement; provided, however, notwithstanding anything to the contrary contained herein, Parent and the Company consent and agree that all information referenced in Section 8.4 may be shared with and delivered to the Financing Sources. No information or knowledge obtained in any investigation pursuant to this Section 7.6 shall affect or be deemed to modify any representation or warranty made by Parent or the Company pursuant to this Agreement.
(b) Notwithstanding anything to the contrary in this Section 7.6, Section 8.1 or Section 8.2, neither Parent nor any of its Subsidiaries shall be required to provide access to its properties, books, contracts, records or personnel if such personnel and records access would unreasonably disrupt its operations, or provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of Parent or any of its Subsidiaries or contravene any Applicable Law or binding agreement entered into prior to the date hereof in connection with the Company’s due diligence review of this Agreement; provided that Parent shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in connection which such restrictions apply (including redacting such information (i) to remove references concerning valuation, (ii) as necessary to comply with contractual arrangements in effect on or after the Transactions.
date hereof and (diii) All as necessary to address reasonable attorney-client or other privilege or confidentiality concerns); provided, however, that in no event shall the Company have access to individual performance or evaluation records, medical histories or other similar information obtained by that the parties hereto pursuant disclosure of which, in the reasonable opinion of Parent, would reasonably be expected to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto subject Parent or any condition of its Subsidiaries to the obligations risk of the parties heretoliability.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company Omega shall, and shall cause each of its Subsidiaries to, provide afford to Parent Beta, Merger Sub Inc., Merger Sub LLC and Parent’s their respective Representatives reasonable access during normal business hours upon reasonable hours, during the period prior notice to the officersFirst Merger Effective Time or the termination of this Agreement in accordance with its terms, employees to such books, records, information, properties and other personnel, agents, properties, offices and other facilities of the Company personnel regarding Omega and its Subsidiaries as shall be reasonably requested by Beta, Merger Sub Inc. and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)Merger Sub LLC; provided, however, that (x) the Company foregoing shall not be required require Omega to provide access to or disclose any such information to the extent such access or disclosure would contravene applicable Law or result in the loss of legal protection, including attorney-client privilege of the Company or any of its Subsidiaries (provided provided, that the Company and its Subsidiaries Omega shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company provide as much information as is reasonably determines, practicable in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company concerns or its Subsidiaries or in such a manner as to the extent necessary to comply with applicable Lawsnot lose such legal protection).
(b) Without limiting Beta shall, and shall cause each of its Subsidiaries to, afford to Omega and its Representatives and the generality of Debt Financing Sources reasonable access during normal business hours, during the foregoing, period prior to the Company covenants and agrees that, between First Merger Effective Time or the date termination of this Agreement in accordance with its terms, to such books, records, information, properties and the Effective Time, the Company personnel regarding Beta and its Subsidiaries as shall keep Parent be reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including requested by providing copies of material information to ParentOmega; provided, however, that the Company foregoing shall not be required require Beta to provide such disclose any information to the extent providing such information disclosure would contravene applicable Law or result in the loss of legal protection, including attorney-client privilege of the Company or any of its Subsidiaries (provided provided, that the Company and its Subsidiaries Beta shall use their its reasonable best efforts to provide as much information as is reasonably practicable in light of such information concerns or in such a manner that does as to not result in a loss of attorney-client privilegelose such legal protection). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to All such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept held confidential in accordance with the terms of the Confidentiality Agreement between BioScrip Infusion Services, Inc. and Option Care Enterprises, Inc. dated as of September 6, 2018 (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Upon reasonable notice and subject to applicable Law, from the date each of this Agreement until the Effective Time, the Company Diffusion and Parent shall, and shall cause each of its respective Subsidiaries to, provide afford to Parent the other party and Parent’s to the Representatives of such other party reasonable access during normal business hours upon reasonable the period prior notice to the officersEffective Time to all their respective properties, employees books, Contracts, commitments, personnel and records and, during such period, each of Diffusion and Parent shall, and shall cause each of its respective Subsidiaries to, furnish promptly to the other party (a) a copy of each report, schedule, registration statement and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and document filed by it during such period pursuant to the books requirements of federal or state securities Laws or Health Laws (other than such documents that such party is not permitted to disclose under applicable Law) and records thereof (including for purposes of conducting regulatory compliance reviews b) all other information concerning its business, properties and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)personnel as such other party may reasonably request; provided, however, that either party may withhold any document or information (xi) that is subject to the Company terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business (provided that the withholding party shall not be use reasonable best efforts to obtain the required consent of such third party to provide access to or disclose any such information to the extent such access or disclosure), (ii) the disclosure of which would result violate any Law or fiduciary duty (provided that the withholding party shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in the loss violation of any Law or fiduciary duty) or (iii) that is subject to any attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries withholding party shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the maximum extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege); provided that the foregoing grant of access to real property shall not include any right to conduct any environmental sampling, testing or other intrusive investigations. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAFurthermore, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA parties acknowledge that with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such the “Confidential Information” (as IDEs, clinical trials (whether new or on-goingdefined in the Diffusion Confidentiality Agreement), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior Diffusion Confidentiality Agreement imposes additional restrictions as to the Effective Time.
(c) Except as otherwise prohibited manner in which such information will be exchanged by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) parties. All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.2 shall be kept confidential in accordance with subject to the Mutual Confidential Nondisclosure Agreement, dated September 4, 2015, between Parent and Diffusion (as supplemented and amended from time to time, the “Diffusion Confidentiality Agreement.
(e) ”). No investigation pursuant to this Section 7.03 6.2 or information provided, made available or delivered to Diffusion or Parent pursuant to this Section 6.2 or otherwise shall affect any representation, warranty, covenant representations or agreement warranties of Parent or Diffusion or conditions or rights of Parent or Diffusion contained in this Agreement of any party hereto or any condition to the obligations of the parties heretoAgreement.
Appears in 1 contract
Samples: Merger Agreement (RestorGenex Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from During the date of this Agreement until the Effective TimePre-Closing Period, the Company shall, and shall cause its Subsidiaries to, provide authorize and permit HBC, its representatives, accountants and counsel, to Parent and Parent’s Representatives have reasonable access during normal business hours upon reasonable prior notice hours, to all properties, books, records, branch operating reports, branch audit reports, operating instructions and procedures, Tax Returns, contracts and documents, and all other information with respect to its business affairs, financial condition, assets and liabilities as HBC may from time to time reasonably request. The Company further agrees to continue to respond to and cooperate with HBC and its advisers with respect to the officersdue diligence requests of HBC. The Company and its Subsidiaries shall permit HBC, employees its representatives, accountants and counsel to make copies of such books, records and other personneldocuments and to discuss the business affairs, agentscondition (financial and otherwise), properties, offices assets and other facilities liabilities of the Company and its Subsidiaries with such third persons, including its directors, officers, employees, accountants, counsel and to creditors, as is necessary or reasonably appropriate for the books and records thereof (including for purposes of conducting regulatory compliance reviews familiarizing itself with the businesses and audits to allow Parent to be in compliance with operations of the Company and its policies and procedures and any applicable Law at the Effective Time); Subsidiaries (provided, however, that (x) any of the foregoing activities are conducted during normal business hours, with reasonable prior notice to and agreement of the Company and conducted in a manner that will not disrupt the ongoing business operations of the Company), obtaining any necessary Orders, consents or approvals of the Contemplated Transactions by any Governmental Entity and conducting an evaluation of the assets and liabilities of the Company and its Subsidiaries. Upon reasonable request by HBC, the Company shall not make its chief financial officer and controller available to discuss with HBC and its representatives HBC’s ongoing due diligence and review of the Company and its Subsidiaries operations. The Company will cause its independent outside auditors to make available to HBC, its accountants, counsel and other agents, such personnel, work papers and other documentation of such firm relating to its work papers and its audits of the books and records of the Company and its Subsidiaries as may be reasonably requested by HBC in connection with its review of the foregoing matters. Neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose any such information to the extent where such access or disclosure would result in jeopardize the loss protection of attorney-client privilege or contravene any applicable Law, or violate the rights, interests or confidence of the Company or any of its Subsidiaries customer (provided it being agreed that the Company and its Subsidiaries parties shall use their reasonable best commercial efforts to allow for cause such access or disclosure information to be provided in a manner that does would not result in a loss such jeopardy or contravention). No investigation shall affect the Company’s representations and warranties contained herein, or limit or otherwise affect the remedies available to HBC pursuant to this Agreement. The foregoing notwithstanding, neither HBC nor any of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities its representatives shall contact any of the Company and its Subsidiaries employees (other than the senior officers identified in writing to the extent the Company reasonably determinesHBC), in light landlords, customers, suppliers or any other third party provider of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary Company without the prior written consent of the Company’s chief executive officer (such consent not to comply be unreasonably withheld, delayed or conditioned), it being acknowledged that any and all such contacts will be arranged by and coordinated with applicable Lawsthe Company.
(b) Without limiting the generality of the foregoing, HBC and the Company covenants shall, and agrees thatcause their respective Affiliates and Representatives to, between comply with all of their respective obligations under the date Confidentiality Agreement, which shall survive the termination of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the terms set forth therein. All information, documents and materials disclosed or provided to HBC by the Company pursuant to Section 6.03(a) and any other provision of this Agreement is expressly subject to the restrictions set forth in the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the period prior notice to the officersearlier of the Effective Time or the termination of this Agreement to its properties, employees books and other records, Contracts and personnel, agentsand, propertiesduring such period, offices and other facilities of the Company shall furnish, as promptly as reasonably practicable, to Parent such information concerning its business, properties and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to or Parent’s Representatives may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (i) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (ii) such information relates to the applicable portions of the minutes of the meetings of the Company Board or the Special Committee (including any presentations or other materials prepared by or for the Company Board or the Special Committee) where the Company Board or the Special Committee discussed (or is information otherwise related to) (A) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, the license of a material portion of the Company’s assets to, or combination of the Company with, any other Person, (B) any Company Takeover Proposal or (C) any Intervening Event, or (iii) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Company, violate applicable Law or any of its Subsidiaries (result in antitrust risk for the Company; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as is necessary to the extent providing permit disclosure to Parent without jeopardizing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by violating applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) as applicable. All information obtained by the parties hereto exchanged pursuant to this Section 7.03 7.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated November 30, 2023 between the Company, Parent and Guarantor, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its each of the Company Subsidiaries to, provide afford to Parent and to Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to (under the officers, employees supervision of appropriate personnel and other personnel, agents, properties, offices and other facilities in a manner that does not unreasonably interfere with the normal operation of the business of the Company and its Subsidiaries and the Company Subsidiaries) during the period prior to the Effective Time to all their respective properties, books and records thereof (including for purposes of conducting regulatory compliance reviews and audits Contracts and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish, as promptly as reasonably practicable, to allow Parent to be in compliance with all information concerning its policies business, properties and procedures and any applicable Law at the Effective Time)personnel as Parent may reasonably request; provided, however, that (x) any reasonable out-of-pocket expenses incurred by the Company or any Company Subsidiary in connection with affording such access or furnishing any such information shall not be reimbursed by Parent. Notwithstanding the immediately preceding sentence, neither the Company nor any of the Company Subsidiaries shall be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party, (b) relating to the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board or any committee thereof) where the Company Board or any such committee thereof discussed the Transactions or any similar transaction between the Company and any other Person or (c) the Company determines in good faith that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access Subsidiaries, violate applicable Law or disclosure in a manner that does not result in a loss significant antitrust risk for the Company or any of attorney-client privilegethe Company Subsidiaries; provided, in the case of clauses (a) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-goingc), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required use its commercially reasonable efforts to provide make alternative arrangements to afford such access or furnish such information to the extent providing without breaching such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide confidentiality agreement, jeopardizing such information in a manner that does not result in a loss of attorney-client privilege), violating applicable Law or resulting in such antitrust risk, as applicable. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 5.02 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated April 15, 2016, between the Company and Parent (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From and after the date of this Agreement until and prior to the earlier of the Effective TimeTime or the termination of this Agreement pursuant to Article VII, the Company shall, and shall cause its Subsidiaries toSubsidiaries, to (i) provide to Parent and Parent’s its Representatives reasonable access during normal business hours and upon reasonable prior advance notice to the officers, employees and other personnel, agentsemployees, properties, offices assets, books and other facilities records and, use commercially reasonable efforts to cause, accountants (subject to prior execution of customary access and non-reliance letters if required by such accountants) of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (xii) the Company shall not be required to provide access to or disclose any furnish promptly such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that concerning the Company and its Subsidiaries shall use their reasonable best efforts to allow for as Parent may reasonably request; provided, that any such access or disclosure in a manner that does not result in a loss shall be conducted at Parent’s expense and under the supervision of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee appropriate personnel of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of Subsidiaries. Notwithstanding the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such access if it reasonably determines that such access may unreasonably disrupt, impair or interfere with the business or operations of the Company or any of its Subsidiaries. Nothing herein shall require the Company or any of its Subsidiaries to disclose information to the extent providing (A) such information disclosure would reasonably be expected to result in the loss a waiver of attorney-client privilege, work product doctrine or similar privilege held by the Company or any of its Subsidiaries, (B) such disclosure would violate any applicable Law or any confidentiality obligation of such party, or (C) such information relates to the negotiation and execution of this Agreement, is reasonably pertinent to any adverse Legal Action between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand, or relates to, subject to Section 5.3, a Takeover Proposal; provided, further, that information regarding Legal Actions shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent to the extent that the Company determines limiting disclosure in such manner would be reasonably required for the purpose of complying with applicable Law.
(b) Parent and the Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under each of the Confidentiality Agreements with respect to the information disclosed under this Section 5.2, except that, notwithstanding anything to the contrary in the Confidentiality Agreements, prior to the termination of this Agreement pursuant to Article VII (and only if this Agreement is not so terminated): (i) other than sources of equity or debt financing previously agreed to by the Company, any actual or potential sources of equity or debt financing of Wise Road Capital LTD. shall not be considered Representatives (as defined in the Confidentiality Agreement) unless consented to in writing by the Company, which consent shall not be unreasonably withheld, conditioned or delayed, (ii) the first sentence of paragraph 3 of the Confidentiality Agreement shall not apply to any such actual or potential sources of equity or debt financing that is a Representative (as defined in the Confidentiality Agreement), and the third sentence of paragraph 3 of the Confidentiality Agreement shall not prohibit the establishment of customary “trees” dedicated to Parent and Parent’s Affiliates at such potential sources of debt financing and (iii) the first sentence of paragraph 4 of the Confidentiality Agreement shall not apply from and after the date hereof, subject to Section 5.2(a).
(c) Nothing contained in this Agreement shall give Parent or its Affiliates, directly or indirectly, rights to conduct or cause to be conducted any environmental investigation of the current or former operations or facilities of the Company or any of its Subsidiaries without the prior written consent of the Company, which may be withheld or conditioned in its sole discretion.
(provided that d) Parent hereby agrees that, except (i) as contemplated by this Agreement or (ii) for communications consistent with communications plans pre-approved by the Company, it is not authorized to and shall not (and shall not permit any of its Representatives or Affiliates to) contact any employee, landlord, customer, supplier or other material business relation of the Company or its Subsidiaries in respect of or related to the transactions contemplated by this Agreement before the Closing without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned), following which the Company and its Subsidiaries shall use their reasonable best efforts take all actions reasonably necessary to provide facilitate any such information in a manner that does not result in a loss of attorney-client privilege)contacts. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship event that such contact with FDAan employee, the Company also agrees to in a reasonably timely manner provide Parent with any and all landlord, customer, supplier or other material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy business relation of the Company or its Subsidiaries is approved by the Company, the Company shall be given the reasonable opportunity to participate in discussions and meetings with, and copied on all correspondence of, Parent, its Affiliates or Representatives, on the one hand, and any such approved employee, landlord, customer, supplier or other material business relation, on the other hand, prior to the Effective TimeClosing.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, (i) provide to Parent and Parent’s Representatives reasonable access during normal business hours at reasonable times upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law or Order at the Effective Time); and (ii) furnish promptly to Parent such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Company and its Subsidiaries as Parent or its Representatives may reasonably request (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law or Order at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws).
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives access at reasonable access during normal business hours times upon reasonable prior notice to Parent’s personnel and records (i) on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionstransactions contemplated hereby and (ii) to the extent reasonably necessary for the Company to determine whether the conditions set forth in Section 8.03 are satisfied.
(dc) All information obtained by the parties hereto pursuant to this Section 7.03 7.04 shall be kept confidential in accordance with the Confidentiality Agreement and the Parent Confidentiality Agreement.
(ed) No investigation pursuant to this Section 7.03 7.04 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice Subject to the officers, employees and other personnel, agents, properties, offices and other facilities restrictions of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at or contractual confidentiality obligations and the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss reasonable preservation of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access other applicable legal or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees thatcontractual confidentiality obligations, between the date of this Agreement and the Effective TimeClosing, the Company Sellers shall keep Parent reasonably informed as (i) give Buyer and its authorized representatives reasonable access to the Company’s FDA regulatory strategy books, records, work papers, offices and other facilities and properties of the Business and the Acquired Companies, (ii) permit Buyer to make such inspections thereof as Buyer may reasonably request, and (iii) cause the officers and other employees of the Business and the Acquired Companies, to furnish Buyer with such financial and operations data and other information with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, the Business and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parentthe Acquired Companies as Buyer may reasonably request; provided, however, that any such investigation shall be conducted during normal business hours under the Company reasonable supervision of the applicable personnel of Sellers or their Affiliates and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated by this Agreement in accordance with the Confidentiality Agreement and not interfere unreasonably with the operations of the Business and Buyer shall not have no right of access to, and none of Seller or any of its Affiliates will have any obligation to provide, any information the disclosure of which would reasonably be required expected to provide such information jeopardize any evidentiary privilege available to Sellers or any of their Affiliates. To the extent providing that such information access would violate applicable Law or contractual confidentiality obligations or result in the loss waiver of attorney-client privilege of or other applicable legal privilege, the Company or any of its Subsidiaries (provided that the Company Sellers shall, and its Subsidiaries shall cause their respective Affiliates to, use their reasonable best efforts to provide allow for such information access, or as much of such access as is reasonably practicable, in a manner that does not violate such Law or confidentiality obligation or result in a loss waiver of attorney-client such privilege. Notwithstanding the foregoing, without the prior written consent of UPS (in its sole discretion). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any Buyer and all material communications with FDA with respect to its pre-submissionscounsel, submissionsenvironmental consultants, investment bankers, financial sources, lenders and other non-immaterial regulatory issues such as IDEsrepresentatives shall not be permitted, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective TimeClosing, to conduct any environmental assessments, studies, investigations, monitoring, or other inquiries pertaining to Environmental Laws or Hazardous Substances and relating to the Leased Real Property, including any Phase I environmental site assessment, Phase II environmental site assessment, or invasive sampling of soil, groundwater, air, any other environmental media, or building materials or equipment.
(b) All information furnished or provided by Sellers, the Acquired Companies, or any of their respective Affiliates or representatives to Buyer or its representatives prior to the Closing or the earlier termination of this Agreement (whether furnished before or after the date of this Agreement) shall be held subject to the Confidentiality Agreement; provided, that the Confidentiality Agreement shall terminate at the Closing.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 5.2 shall in any way impact or affect any representationof the representations or warranties set forth in Article III.
(d) Following the Closing, warrantysubject to Section 5.7, covenant Buyer expressly acknowledges and agrees that Sellers may retain copies of all books and records and other materials of the Business solely to the extent reasonably necessary in connection with the purposes described in Section 5.7.
(e) The Sellers shall not, and shall not permit and shall cause each of their Affiliates not to, for a period of three (3) years following the Closing Date, without the prior written consent of Buyer, disclose to any third party (other than Sellers, their Affiliates and their respective advisors who are subject to obligations of confidentiality) any nonpublic information that is proprietary or agreement competitively sensitive to the extent relating to the Business (“Confidential Business Information”); provided, however, that the term “Confidential Business Information” will not include any information (i) that becomes available to Sellers or their Affiliates from and after the Closing, from a third-party source that is not known by Sellers to be under any obligations of confidentiality in respect of such information, (ii) that is or becomes generally available to, or known by, the public (other than as a result of disclosure in violation hereof) or (iii) that is or was derived independently by Sellers or their Affiliates without use of Confidential Business Information. Notwithstanding the foregoing, the foregoing shall not prohibit Sellers, their Affiliates or any of their respective representatives (A) from disclosing Confidential Business Information for the purpose of complying with the terms of this Agreement or any of the Ancillary Agreements, or (B) from disclosing Confidential Business Information that Sellers, any of their Affiliates or their representatives are required by Law (by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process) or requested by any Governmental Entity with jurisdiction over such Person to disclose; provided, that in the event that any such Person is so required or requested to disclose such Confidential Business Information, Sellers shall reasonably promptly notify Buyer in writing (unless not permitted by Law or such legal or regulatory process to so notify), which notification shall include a reasonably detailed description of such legal or regulatory requirement or request, as applicable, and the extent of the required or requested disclosure, and will use reasonable best efforts to cooperate with Buyer, at Buyer’s request and expense, to preserve, to the extent reasonably practicable, the confidentiality of such information. Furthermore, the provisions of this Section 5.2(e) will not prohibit any retention of copies of records or any disclosure in connection with the preparation and filing of financial statements or Tax Returns of Sellers or their Affiliates or any disclosure made in connection with the enforcement of any party hereto right or remedy relating to this Agreement or the transactions contemplated hereby or any condition to the obligations of the parties heretobona fide document retention policies or procedures.
Appears in 1 contract
Samples: Purchase Agreement (RXO, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from Parent will provide and will cause Parent’s Subsidiaries and its and their respective directors, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, agents and other representatives (collectively, “Representatives”) to provide the date Company and its authorized Representatives, during normal business hours and upon reasonable advance notice, such reasonable access to the offices, employees, customers, suppliers, properties, books and records of this Agreement until Parent and its Subsidiaries (so long as such access does not unreasonably interfere with the Effective Timeoperations of Parent and its Subsidiaries) as the Company may reasonably request (including for the purposes of conducting environmental due diligence). Subject to applicable Law, the Company shallwill provide and will cause the Company’s Subsidiaries and its and their respective Representatives to provide Parent and its authorized Representatives, during normal business hours and upon reasonable advance notice, such reasonable access to the offices, employees, properties, books and records of the Company Entities (so long as such access does not unreasonably interfere with the operations of any Company Entities) as Parent may reasonably request (including for the purposes of planning the operation of New Parent after the Effective Time and conducting environmental due diligence). No party shall have access to personnel records of the other party or any of its Subsidiaries relating to individual performance or evaluation records, medical histories or other information that in such other party’s good faith opinion the disclosure of which could subject such other party or any of its Subsidiaries to risk of liability. Notwithstanding anything to the contrary herein, no party shall be permitted to conduct any sampling or analysis of any environmental media or building materials at any facility of the other party or its Subsidiaries without the prior written consent of such other party, which may be granted or withheld in its sole discretion.
(b) With respect to any information disclosed pursuant to this Section 6.4 each of the Company and Parent shall comply with, and shall cause each of its Subsidiaries toand their respective Representatives to comply with, provide to Parent all of its obligations under the mutual nondisclosure and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officersconfidentiality agreement, employees and other personneldated October 9, agents2017, properties, offices and other facilities of previously executed by the Company and its Subsidiaries and to Parent (the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time“Confidentiality Agreement”); provided, however, that (x) the Company . No party shall not be required to provide access to or disclose any such information to the extent where such access or disclosure would result in the loss of jeopardize any attorney-client privilege of the Company such party or any Subsidiary of its Subsidiaries such party or contravene any Contract, Law or order (provided it being agreed that the Company and its Subsidiaries parties shall use their respective reasonable best efforts to allow for cause such access or disclosure information to be provided in a manner that does would not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company jeopardy or its Subsidiaries or to the extent necessary to comply with applicable Lawscontravention).
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (Bill Barrett Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its (and its Subsidiaries') properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by any of them pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by any of them with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, agentsoperations, properties, offices prospects, personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, (A) all financial records, ledgers, workpapers and other facilities sources of financial information processed or controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and the Company and its Subsidiaries taken as a whole and certifying financial statements and financial information and (B) all other information relating to the books Company, its Subsidiaries and records thereof Stockholders that VIALOG or its Representatives requires, in either case for inclusion in or in support of the Financing Document, and (including iii) such other information concerning any of the foregoing as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for purposes the benefit of conducting regulatory compliance reviews the parties hereto, VIALOG will hold and audits will use commercially reasonable efforts to allow Parent cause the Representatives of VIALOG to be in compliance with its policies hold, and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required will hold and will use commercially reasonable efforts to provide access to or disclose any such information to cause the extent such access or disclosure would result in the loss of attorney-client privilege Representatives of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determineshold, in light of COVID-19, that such access would jeopardize the health strict confidence all non-public documents and safety of any employee of the Company information furnished (whether prior or its Subsidiaries subsequent hereto) to VIALOG or to the extent necessary to comply with applicable Laws.
(b) Without limiting Company, as the generality of the foregoingcase may be, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementAsset Purchase and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) The Company and VIALOG acknowledge that the Company and VIALOG executed a Second Confidential Disclosure Agreement dated as of June 30, 1996 (the "Confidentiality Letter"), which separately and as incorporated in this Agreement will remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company by VIALOG, or its Representatives or by the Company or its Representatives from VIALOG pursuant to Section 6.1(a), the Confidentiality Letter or otherwise will be subject to the provisions of the Confidentiality Letter.
(d) No investigation pursuant to this Section 7.03 shall 6.1 will affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from during the date of this Agreement until Interim Period, upon reasonable advance notice to the Effective TimeCompany, the Company shall, and shall cause its Subsidiaries to, (i) provide to Parent and Parent’s its Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agentsemployees, properties, offices books, Contracts and other facilities records of the Company and its Subsidiaries and (other than any of the foregoing that relate to the books consideration, negotiation and records thereof execution of this Agreement, the process that led to the negotiation and execution of this Agreement or, subject to the disclosure requirements set forth in Section 5.3, any Takeover Proposal or Intervening Event) and (including ii) furnish promptly such information concerning its business, personnel, assets, liabilities and properties as Parent may reasonably request, in each case, for reasonable business purposes related to the consummation of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)Merger Transactions; provided, howeverthat any such access shall be conducted at Parent’s expense, that (x) at a reasonable time, under the supervision of appropriate personnel of the Company shall or its applicable Subsidiaries and in such a manner as not be required to provide access to interfere unreasonably with the normal business or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege operations of the Company or any of its Subsidiaries (provided Subsidiaries; provided, further, that such access may be limited by the Company and its Subsidiaries shall use their reasonable best efforts to allow the extent reasonably necessary (A) for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities or any of the Company and its Subsidiaries to the extent the Company reasonably determinescomply with any applicable COVID-19 Measures or (B) for such access, in light of COVID-19COVID-19 or COVID-19 Measures, that such access would not to jeopardize the health and safety of any employee of the Company Company’s or its Subsidiaries Subsidiaries’ respective Representatives or to commercial partners (provided, that, in the extent necessary to comply with applicable Laws.
case of clauses (bA) Without limiting the generality of the foregoingand (B), the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) in a manner without risking the health and safety of such Persons or violating such COVID-19 Measures). Nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (x) jeopardize any attorney-client or other legal privilege (so long as the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice its Subsidiaries have reasonably cooperated with Parent to Parent’s personnel and records permit such inspection of or to disclose such information on a basis consistent that does not waive such privilege with the Company’s access to such personnel and records respect thereto) or (y) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date hereof in connection with of this Agreement (including any confidentiality agreement to which the Company’s due diligence review Company or any of Parent and its Subsidiaries is a party) (so long as the Company has used reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in connection violation of such applicable Law, agreement or duty); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent that the Company determines doing so may be reasonably required for the purpose of complying with the Transactionsapplicable Antitrust and Foreign Investment Laws.
(db) All No information or knowledge obtained by the parties hereto Parent or Merger Sub pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this 5.2 or Section 7.03 5.3 or otherwise shall affect or be deemed to affect or modify any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition contained herein, the conditions to the obligations of the parties heretoto consummate the Transactions in accordance with the terms and provisions hereof or otherwise prejudice in any way the rights and remedies of Parent or Merger Sub hereunder, nor shall any such information, knowledge or investigation be deemed to affect or modify Parent’s or Merger Sub’s reliance on the representations, warranties, covenants and agreements made by the Company in this Agreement.
(c) Information disclosed under this Section 5.2 and otherwise pursuant to this Agreement shall be governed under the letter agreement regarding confidentiality, dated January 25, 2022, between Brookfield Capital Partners LLC and the Company (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Merger Agreement (CDK Global, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from Between the date of this Agreement until hereof and the Effective Time, the Company shallBancorp will afford, and shall will cause its Subsidiaries toeach Bancorp Subsidiary to afford, provide to Parent the officers, accountants, attorneys and Parent’s Representatives authorized representatives of Buyer, reasonable access during normal business hours upon reasonable prior notice to the officerscorporate and banking offices, employees and other personnel, agentsadvisors, consultants, properties, offices and other facilities of the Company and its Subsidiaries and to the contracts, commitments, books and records thereof of Bancorp and each Bancorp Subsidiary, whether such documents are located on the premises of Bancorp or elsewhere. Bancorp shall furnish Buyer with all such statements (including financial and otherwise), records and documents or copies thereof, and other information concerning the business and affairs of Bancorp and each Bancorp Subsidiary, as Buyer shall from time to time reasonably request. Bancorp further agrees to cause its accountants, attorneys and such other persons as the parties shall mutually agree upon to fully cooperate with Buyer and its representatives in connection with the right of access granted herein.
(b) Bancorp shall allow Buyer's Chairman to attend the meetings of the boards of directors and board committees of Bancorp and Bancorp Bank as an observer. Bancorp shall give reasonable notice to Buyer of the date, time and place of each such meeting, and if known, the agenda for purposes of conducting regulatory compliance reviews and audits to allow Parent or business to be discussed at each such meeting. Bancorp shall also provide to Buyer all written agendas and meeting materials provided to the boards of directors of Bancorp and Bancorp Bank in compliance connection with its policies such board and procedures and any applicable Law at board committee meetings. Notwithstanding the Effective Time); providedforegoing, however, that (x) the Company Bancorp shall not be required to permit Buyer's Chairman to attend any portion of any meeting, or to provide access to Bancorp with any materials, that relate to this Agreement or disclose any such information to an Acquisition Transaction, or that involve matters protected by the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except for information and documents that do not constitute "Evaluation Material" as otherwise prohibited defined in the Confidentiality Agreement, all information and documents to which Buyer is given access pursuant hereto shall be subject to the Confidentiality Agreement. All information furnished by applicable Law, from Bancorp or any Bancorp Subsidiary to Buyer pursuant hereto shall be treated as the date sole property of this Agreement Bancorp until the Effective Time, Parent shallconsummation of the Merger contemplated hereby, and if the Merger shall cause its Subsidiaries tonot occur, provide Buyer shall destroy or return such information to Bancorp to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained extent required by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Success Bancshares Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof until the earlier of the termination of this Agreement until the Effective Timein accordance with its terms and Closing, the Company upon reasonable advance notice, Latch shall, and shall cause each of its Subsidiaries to, provide to Parent HDW and Parent’s Representatives reasonable access its representatives during normal business hours upon reasonable prior notice access to the officersall employees, employees and other personnelconsultants, accountants, agents, propertiesother representatives, offices facilities, books and other facilities records of the Company Latch and its Subsidiaries reasonably requested; provided that (a) such access shall be at the risk of HDW and to the books and records thereof its representatives, (including for purposes of conducting regulatory compliance reviews and audits to allow Parent b) such access shall occur in such a manner as Latch reasonably determines to be in compliance with its policies appropriate to protect the confidentiality of the transactions contemplated hereby and procedures and any applicable Law at the Effective Time); provided, however, that (xc) the Company nothing herein shall not be required require Latch to provide access to, or to or disclose any such information to the extent to, HDW or any of its representatives if such access or disclosure would result disclosure, in the loss good faith reasonable belief of attorney-client privilege of the Company Latch, (i) would cause significant competitive harm to Latch or any of its Subsidiaries if the transactions contemplated hereby are not consummated, (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access ii) would waive any legal privilege, (iii) would be in violation of applicable laws or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety regulations of any employee of the Company Governmental Entity, (iv) would adversely impact or its Subsidiaries delay Latch’s ongoing remediation and restatement processes or to the extent necessary (v) would adversely impact or delay Latch’s efforts to comply with applicable LawsNasdaq’s listing requirements. For the avoidance of doubt, Latch shall not be obligated under this Section 5.3(a) to permit HDW or any of its representatives to conduct any invasive, intrusive or subsurface sampling or testing of any media at Latch’s properties or facilities. All of such information provided to HDW shall be treated as confidential information pursuant to the terms of the Confidentiality Agreement, the provisions and restrictions of which are by this reference hereby incorporated herein.
(b) Without limiting From the generality date hereof until the earlier of the foregoing, the Company covenants and agrees that, between the date termination of this Agreement in accordance with its terms and Closing, upon reasonable advance notice, HDW shall provide to Latch and its representatives during normal business hours reasonable access to all employee, facilities, books and records of HDW reasonably requested; provided that (a) such access shall be at the Effective Timerisk of Latch and its representatives, (b) such access shall occur in such a manner as HDW reasonably determines to be appropriate to protect the Company confidentiality of the transactions contemplated hereby and (c) nothing herein shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required require HDW to provide such access to, or to disclose any information to the extent providing such information would result in the loss of attorney-client privilege of the Company to, Latch or any of its Subsidiaries representatives if such access or disclosure, in the good faith reasonable belief of HDW, (provided that i) would cause significant competitive harm to HDW if the Company and transactions contemplated hereby are not consummated, (ii) would waive any legal privilege or (iii) would be in violation of applicable laws or regulations of any Governmental Entity. For the avoidance of doubt, HDW shall not be obligated under this Section 5.3(b) to permit Latch or any of its Subsidiaries shall use their reasonable best efforts representatives to provide conduct any invasive, intrusive or subsurface sampling or testing of any media at HDW’s properties or facilities. All of such information in a manner that does not result in a loss provided to Latch shall be treated as confidential information pursuant to the terms of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAConfidentiality Agreement, the Company also agrees to in a reasonably timely manner provide Parent with any provisions and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject restrictions of which would likely have a material impact on the Company’s current or future business. Nothing contained in are by this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timereference hereby incorporated herein.
(c) Except Promptly following the date hereof, Latch and HDW shall establish a transition and integration planning team (the “Integration Committee”), comprised of such officers and other persons as otherwise prohibited they mutually agree. The chair of the Integration Committee will be the Chief Executive Officer of HDW or such other person as designated by the Chief Executive Officer of HDW. Subject to applicable Law, from the date Integration Committee shall discuss and plan for a transition and integration planning process concerning the combination of this Agreement until the Effective Timeoperations of Latch, Parent shallXxxxx’s Subsidiaries and HDW after the Closing, and shall cause its Subsidiaries tomeet from time to time, provide as reasonably requested by the Chief Executive Officer of HDW. All members of the Integration Committee (as well as any other person that is granted access to the Company information and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained planning process discussed by the parties hereto pursuant Integration Committee) shall enter into agreements with Latch containing provisions that require such counterparty thereto (and any of its affiliates and representatives named therein) to this Section 7.03 shall be kept (i) keep all such information confidential in accordance with and refrain from using such information, (ii) protect all Intellectual Property of Latch and (iii) ensure that any Intellectual Property resulting from the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations work of the parties heretoIntegration Committee is owned by Xxxxx (in each case, subject to customary exceptions).
Appears in 1 contract
Samples: Merger Agreement (Latch, Inc.)
Access to Information; Confidentiality. (a) Except From the date hereof until the earlier of the Effective Time or the date on which this Agreement is terminated in accordance with its terms, the Company shall (and shall cause its Subsidiaries to) afford Parent and its Representatives and Debt Financing Sources reasonable access during normal business hours to the properties of the Company and its Subsidiaries (but not for the conduct of any sampling or other similarly invasive analysis of soil, water, air or building materials), facilities, personnel, books, Contracts and records and the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent such information concerning the Company and its Subsidiaries as otherwise prohibited Parent may reasonably request (other than any publicly available document filed by it pursuant to the requirements of federal or state securities Laws); provided that (i) Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company or any of its Subsidiaries; (ii) the Company shall have the right to have a designee of the Company accompany Parent and its Representatives on any visits or inspections of any properties of the Company and its Subsidiaries; and (iii) the Company shall not be obligated to provide such access or information if the Company determines, in its reasonable judgment, after consultation with outside legal counsel, that doing so would reasonably be expected to violate applicable LawLaw (including Antitrust Laws) or a Contract or obligation of confidentiality owing to a third party (provided that the Company has used commercially reasonable efforts to obtain, at Parent’s sole cost and expense with respect to any reasonable, documented, out-of-pocket costs and expenses related thereto, the consent of such counterparty to the Contract or such third party to whom the confidentiality obligation owes) or jeopardize the protection of the attorney-client privilege; provided that in each case described in this clause (iii) the Company shall cooperate with Parent and use its commercially reasonable efforts to develop, at Parent’s sole cost and expense with respect to any reasonable, documented, out-of-pocket costs and expenses related thereto, alternative methods of providing such information.
(b) Until the Effective Time, the parties hereto will be subject to the terms of the confidentiality letter agreement, dated as of February 9, 2016, between Riverstone Investment Group LLC and the Company, which shall remain in full force and effect and survive the termination of this Agreement (as it may be amended from time to time, the “Confidentiality Agreement”). Notwithstanding anything herein to the contrary, the parties agree and acknowledge that the standstill and similar restrictions in the Stockholder Agreement shall not apply upon the execution and delivery of this Agreement solely to the extent required to permit any action expressly contemplated hereby and in accordance herewith and solely until any valid termination of this Agreement in accordance with its terms.
(c) Parent acknowledges and agrees that it (i) had an opportunity to discuss the business of the Company with the management of the Company, (ii) has had access to the books and records, facilities, contracts and other assets of the Company which it and its Representatives have requested to review, (iii) has been afforded the opportunity to ask questions of and receive answers from officers of the Company and (iv) has conducted its own independent investigation of the Company, its businesses and the Transactions.
(d) From the date of this Agreement until the earlier of the Effective TimeTime and the date on which this Agreement is validly terminated pursuant to Section 7.1, the Company shall, shall (and shall cause its Subsidiaries to, provide ) deliver to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities reports set forth on Section 5.6(d) of the Company Disclosure Schedule, as and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (xwhen required by Section 5.6(d) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsDisclosure Schedule.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until to the Effective TimeClosing, Seller will cause the Company shall, to (i) give Buyer and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives authorized representatives reasonable access during normal to all books, business hours upon reasonable prior notice to the officersand financial records, employees and other personnel, agentstechnology, propertiesprocesses, business plans, budgets and projections, offices and other facilities and properties of the Company and its Subsidiaries and accountants, (ii) allow Buyer reasonable access to the books and records thereof (including Real Property for purposes of conducting regulatory Phase I or Phase II environmental site assessments, environmental compliance reviews or other environmental inspections, reviews, tests or analyses, provided that Buyer shall not undertake any intrusive environmental sampling without Seller’s prior consent, which consent shall not be unreasonably withheld, (iii) permit Buyer to make such copies and audits inspections thereof as Buyer may reasonably request, and (iv) cause the Company’s officers, as applicable, to allow Parent furnish Buyer with such financial and operating data and other information with respect to the business and properties of the Company as Buyer may from time to time reasonably request; provided, however, that any such access shall be conducted at Buyer’s risk and expense, at a reasonable time, under the supervision of Seller or the Company’s personnel and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated by this Agreement and not to interfere unreasonably with the operation of the businesses of Seller or the Company. Notwithstanding the foregoing, Buyer shall not undertake any “intrusive” environmental investigations (i.e., investigations involving boring or drilling upon the Property, soil testing or water or groundwater testing, or activities of a similar nature) without Seller’s consent, such consent not to be unreasonably withheld based upon good cause as evidenced by a “Phase I” environmental site assessment prepared by a reputable, licensed, professional environmental consultant reasonably satisfactory to Seller. If consent is granted, such testing or other activities shall be conducted only in compliance accordance with its policies procedures submitted in writing to Seller and procedures approved by Seller in advance, which approval will not be unreasonably withheld or delayed. Further, other than as required to conduct a “Phase I” environmental site assessment, Buyer shall not prior to Closing contact any governmental agency or instrumentality to disclose or discuss any information regarding the Property without Seller’s prior consent, such consent not to be unreasonably withheld. Buyer shall notify Seller in advance of any environmental investigations with respect to the Property and any applicable Law afford Seller an opportunity to be present at the Effective Timetime of any such investigation. Prior to Closing, Buyer shall hold confidential all information it generates or receives with respect to the Property and shall not disclose such information to any third party except on a reasonable “need to know” basis. Notwithstanding anything in this Section 4.2 to the contrary, Seller shall not be required to provide, or to cause the Company to provide, any information under this Section 4.2(a) that is competitively sensitive and which could be reasonably expected to be used as evidence of a violation under federal, state or foreign anti-trust laws, subject to attorney-client privilege or subject to a confidentiality agreement with a third party (such information, “Privileged Information”); provided, however, that with respect to any information that Seller claims is
(xi) the Company shall not be required Seller agrees to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege Buyer a brief description of the Company or any subject matter of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) Privileged Information and (yii) Seller and Buyer agree to cooperate with each other and to enter into arrangements reasonably acceptable to each party to provide as much detail concerning the Company may limit physical access to Privileged Information as possible while still protecting the properties, offices privileged and other facilities confidential nature of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsPrivileged Information.
(b) Without limiting All such information and access provided or granted pursuant to Section 4.2(a) shall be subject to the generality terms and conditions of the foregoing, letter agreement (the Company covenants and agrees that“Confidentiality Agreement”), between the date of this Buyer and Seller, dated April 4, 2005. The Confidentiality Agreement and the Effective Time, the Company shall keep Parent reasonably informed will terminate effective as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective TimeClosing.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Imperial Sugar Co /New/)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the The Company shall, and shall cause each of its Subsidiaries to, provide afford to Parent and to Parent’s Representatives officers, employees, investment bankers, attorneys, accountants, auditors, consultants and other representatives and advisors access upon reasonable access advance notice, during normal business hours upon reasonable prior notice in a manner as to not unreasonably interfere with the officers, employees and other personnel, agents, properties, offices and other facilities conduct of business of the Company and its Subsidiaries and during the period prior to the books and records thereof (including for purposes earlier of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedTime or the termination of this Agreement to their respective properties, howeverassets, that (x) books, records, Contracts, Permits, documents, information, auditors, auditor’s work papers, directors, officers and employees. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall not be required to provide access to or disclose any such information to where the extent Company reasonably determines (upon the advice of outside counsel) that such access or disclosure would result in could jeopardize the loss of attorney-client attorney‑client privilege of the Company or any of its Subsidiaries (provided or conflict with or violate any applicable Law or any Contract, including any confidentiality obligations contained therein, to which the Company or any of its Subsidiaries is a party; provided, that the Company and its Subsidiaries shall use their its reasonable best efforts (i) to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilegeprivilege or (ii) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries develop an alternative to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided so as to address such matters that the Company and its Subsidiaries shall use their reasonable best efforts is reasonably acceptable to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice . Except as required by any applicable Law or Order, Parent shall treat and shall direct its representatives to Parent’s personnel and records on a basis consistent with treat, all information received from the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Company pursuant to this Section 7.03 shall be kept 6.02(a) confidential in accordance with the Confidentiality Agreement.
(eb) No investigation pursuant Subject to this Section 7.03 applicable Law, the Company and Parent shall, and shall affect any representationcause each of their respective Subsidiaries to, warranty, covenant or agreement use reasonable best efforts to cooperate with respect to transition and integration planning matters in connection with the Merger and the other transactions contemplated by this Agreement of any party hereto or any condition in order to minimize the obligations disruption to, and preserve the value of, the business of the parties heretoSurviving Corporation and its Subsidiaries.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until the earlier to occur of the Effective TimeTime or the termination of this Agreement in accordance with the terms set forth in Article VII, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and Parent’s Representatives reasonable access during normal access, at reasonable times and in a manner as shall not unreasonably interfere with the business hours upon reasonable prior notice or operations of the Company or any Subsidiary thereof, to the officers, employees and other personnelemployees, accountants, agents, properties, offices and other facilities and to all books, records, contracts and other assets of the Company and its Subsidiaries Subsidiaries, and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide furnish promptly to Parent such other information concerning the business and properties of the Company and its Subsidiaries as Parent may reasonably request from time to time. Neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the protection of attorney-client privilege or contravene any Law (it being agreed that the parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in such jeopardy or contravention). The Company acknowledges that the Parent has made arrangements for an outside consultant to review, on behalf of the Parent, the Company’s Representatives reasonable network compliance documentation soon after the execution of this Agreement. Without limiting the generality of the foregoing provisions of this Section 5.03(a), the Company agrees to (i) cooperate with such consultant in regard to such review and (ii) provide such consultant with access during normal business hours upon reasonable prior notice to Parentall of the Company’s personnel and records on a basis consistent applicable network compliance documentation (including, without limitation, coordinating, as necessary, with the Company’s custodian to provide such consultant with access to such personnel the applicable network compliance documentation and records prior to the date hereof in connection with data). No investigation shall affect the Company’s due diligence review of representations and warranties contained herein, or limit or otherwise affect the remedies available to Parent and its Subsidiaries in connection with the Transactionsor Merger Sub pursuant to this Agreement.
(db) All information obtained by Parent and the parties hereto pursuant Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality Agreement, dated June 8, 2011 between Parent and the Company (the “Confidentiality Agreement”), which shall survive the termination of this Section 7.03 shall be kept confidential Agreement in accordance with the Confidentiality Agreementterms set forth therein.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (Cardtronics Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from Laws relating to the date exchange of this Agreement until the Effective Timeinformation, the Company shall, and shall cause each of its Subsidiaries to, provide afford to Parent and Parent’s 's Representatives reasonable access during normal business hours upon reasonable prior notice hours, during the period commencing on the date hereof and ending on the earlier of the Effective Time and the termination of this Agreement, to the Company's and its Subsidiaries' officers, employees and other personnelemployees, agents, properties, offices and other facilities and to the Company's and its Subsidiaries' books and records and furnish Parent and its Representatives with such financial and operating data and other information with respect to the business, personnel, properties and Contracts of the Company and its Subsidiaries as Parent and Merger Sub may from time to time reasonably request. Notwithstanding the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedforegoing, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent afford such access or disclosure if it would result in the cause a violation of any Material Contract, would cause a loss of attorney-/client privilege or trade secret protection to the Company or the Company's Subsidiaries or would constitute a violation of any applicable Laws, provided that the Company shall have used reasonable best efforts to make such disclosure in a form or manner that would not jeopardize such privilege or protection or violate such Law or contractual restriction (including by redacting or otherwise not disclosing any portion thereof the disclosure of which would jeopardize such privilege or entering into a joint defense agreement) and (y) any such investigation or consultation shall be conducted in such a manner so as not to interfere unreasonably with the business or operations of the Company or any of its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by such officers of their normal duties. The information provided will be subject to the terms of the Confidentiality Agreement, dated as of January 14, 2013, between TowerBrook Capital Partners, L.P. and the Company (the "Confidentiality Agreement"), provided that the Company Confidentiality Agreement shall be deemed to permit the disclosure of information in connection with the Financing and its Subsidiaries shall use their reasonable best efforts otherwise in furtherance of satisfying the conditions set forth in Article V and completing the Merger. Additionally, following the end of each applicable period until the earlier to allow for such access or disclosure occur of the Effective Time and the valid termination of this Agreement in a manner that does not result in a loss of attorney-client privilege) and (y) accordance with Section 6.1, the Company may limit physical shall promptly prepare and provide to Parent the following: a monthly management report, a monthly international management report, a monthly wholesale order book report, a monthly wholesale sales and gross margin summary and a weekly retail sales and gross margin reports broken down by channel (full price, outlet and e-commerce).
(b) The Company shall provide consultants representing Parent (the "Consultants"), to the fullest extent permitted by Law, reasonable access to the Company's and its Subsidiaries' officers, employees, agents, properties, offices and other facilities of and books and records, including financial and operating data, during all business and operating hours, and with space to work at the Company and its Subsidiaries Company's headquarters if requested by Parent to the extent available, and shall use reasonable efforts to assist the Company reasonably determinesConsultants in familiarizing themselves with, in light of COVID-19and monitoring, that such access would jeopardize the health business and safety of any employee operations of the Company or its Subsidiaries or to Company. For the extent necessary to comply with applicable Laws.
(b) Without limiting the generality avoidance of the foregoingdoubt, the Company covenants and agrees thatConsultants shall have no executive authority with respect to, between the date of this Agreement and the Effective Timeor decision making role at, the Company, but will be permitted to monitor, observe and discuss Company shall keep Parent reasonably informed as matters with access comparable to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies Company executives of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timesenior rank.
(c) Except as otherwise prohibited by applicable LawNo investigation, from the date of this Agreement until the Effective Timeor information received, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with 4.6, including by the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect Consultants, will modify any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties heretorepresentations and warranties of the Company.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the period prior notice to the officers, employees and other personnel, agents, Effective Time or the termination of this Agreement to all of its properties, offices books and other facilities of records, Contracts and personnel and, during such period, the Company shall furnish, as promptly as reasonably practicable, to Parent all information concerning its business, properties and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, or combination of the Company with, any other Person, (ii) any Company Takeover Proposal or (iii) any Intervening Event, or (c) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Company, or any of its Subsidiaries (violate applicable Law or result in significant antitrust risk for the Company; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions such information as is necessary to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information permit disclosure to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated March 19, 2018 between the Company and Parent (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof until the earlier of the Effective Time and the valid termination of this Agreement until in accordance with Article VIII, upon reasonable prior written notice from Parent to an executive officer or other Person designated by the Effective TimeCompany, the Company shall, and shall use its reasonable best efforts to cause its Subsidiaries Subsidiaries, officers, directors and employees to, provide to (i) afford Parent and Parent’s its Representatives reasonable access during access, consistent with applicable Law, at normal business hours upon reasonable prior notice hours, to the officers, employees Company’s and other personnel, agentsits Subsidiaries’ respective senior officers and key employees, properties, offices offices, and other facilities and to all books and records, and (ii) reasonably promptly furnish Parent with such existing financial, operating and other data and information concerning the Company’s and its Subsidiaries’ businesses, Contracts, properties, assets and liabilities as Parent or its Representatives may from time to time reasonably request. Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Company or its Subsidiaries or the prompt and timely discharge by such officers or employees of their normal duties, and any such access shall be conducted at Parent’s expense under the supervision of appropriate personnel of the Company or its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) shall not include invasive testing. Neither the Company nor any of its Subsidiaries shall not be required to provide access or to or disclose any such information to the extent where such access or disclosure would result in the loss of jeopardize any attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access contravene any applicable Law or binding agreement entered into prior to the propertiesdate of this Agreement. In addition, offices certain information disclosed pursuant to this Section 6.6 may be disclosed subject to execution of a joint defence agreement in customary form, and other facilities of the Company and its Subsidiaries disclosure may be limited to external counsel for Parent, in each case, solely to the extent the Company determines (after consultation with outside legal counsel) that doing so is reasonably determines, in light required for the purpose of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply complying with applicable Antitrust and Foreign Investment Laws.
(b) Without limiting the generality Each of the foregoing, the Company covenants Parent and agrees that, between the date of this Agreement and the Effective Time, the Company Merger Sub shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shallcomply with, and shall cause its Subsidiaries totheir respective Representatives and Affiliates to comply with, provide all of their respective obligations under the applicable terms and conditions of the Reciprocal Confidentiality Agreement, dated May 16, 2023, by and between Gracell Biopharmaceuticals, Inc. and AstraZeneca Pharmaceuticals LP, as amended and novated to the Company and AstraZeneca UK Limited on December 12, 2023 (the Company’s “Confidentiality Agreement”), which shall remain in full force and effect in accordance with its terms. All information disclosed to Parent or its Representatives reasonable access during normal business hours upon reasonable prior notice pursuant to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior this Section 6.6 shall be subject to the date hereof Confidentiality Agreement. Parent shall be responsible for any unauthorized disclosure of any such information provided or made available pursuant to Section 6.6 by its Representatives. Notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement, it is hereby understood and agreed that reports made to Taxing Authorities in connection with the Company’s due diligence review Transactions shall not be deemed a breach of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable prior notice (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the Pre-Closing Period to the officersits properties, employees books and other records, Contracts and personnel, agentsand, propertiesduring such period, offices and other facilities of the Company shall furnish, as promptly as reasonably practicable, to Parent such information concerning its business, properties and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or alternative transactions considered by the Company Board, (ii) any Company Takeover Proposal or (iii) any Intervening Event, or (c) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Company, violate applicable Law or any of its Subsidiaries (result in antitrust risk for the Company; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as is necessary to the extent providing permit disclosure to Parent without jeopardizing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege), violating applicable Law or resulting in such antitrust risk, as applicable. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 7.01 shall be kept confidential subject to the confidentiality letter agreement in accordance with effect between the Company and Parent, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. Upon reasonable notice, the Company shall (aand shall cause each of its Subsidiaries to) Except as otherwise prohibited by applicable Lawafford to the representatives, from officers, directors, employees, agents, attorneys, accountants and financial advisors (“Representatives”) of Parent reasonable access, in a manner not disruptive in any material respect to the date operations of this Agreement until the business of the Company and its Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to the officersproperties, employees books and records and executive management teams (and other personnel, agents, properties, offices and other facilities employees to whom Parent reasonably requests access) of the Company and its Subsidiaries and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning the books business, properties and records thereof (including for purposes personnel of conducting regulatory compliance reviews the Company and audits to allow Parent to its Subsidiaries as may reasonably be in compliance with its policies and procedures and any applicable Law at the Effective Time)requested; provided, however, that (x) the Company nothing herein shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of require the Company or any of its Subsidiaries (provided that to disclose any information to Parent or Acquisition Sub if such disclosure would, in the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities judgment of the Company and its Subsidiaries Company, (i) cause significant competitive harm to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to if the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of transactions contemplated by this Agreement and are not consummated, (ii) violate applicable Law or the Effective Time, the Company shall keep Parent reasonably informed as provisions of any agreement to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of which the Company or any of its Subsidiaries is a party or (iii) jeopardize any attorney-client or other legal privilege, provided that the Company and parties will attempt in good faith to make such alternative arrangements as may be reasonably necessary so that the restrictions of the foregoing clauses (i)-(iii) would not apply; provided further, that nothing herein shall authorize Parent or its Subsidiaries shall use their reasonable best efforts Representatives to provide such information in a manner that does not result in a loss undertake any environmental testing involving sampling of attorney-client privilege). In order to keep Parent reasonably informed regarding soil, groundwater, or similar invasive techniques at any of the Company’s regulatory relationship with FDAproperties owned, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new operated or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of leased by the Company or its Subsidiaries prior Subsidiaries. No investigation or access permitted pursuant to this Section 6.4 shall affect or be deemed to modify any representation or warranty made by the Company hereunder. Parent agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 6.4 for any competitive or other purpose unrelated to the Effective Time.
(c) Except as otherwise prohibited consummation of the transactions contemplated by applicable Law, from the date of this Agreement until (which transactions, for the Effective Timeavoidance of doubt, Parent shallshall include the Financing). The Confidentiality Agreement shall apply with respect to information furnished by the Company, and shall cause its Subsidiaries to, provide to the Company and the Company’s officers, employees and other Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionshereunder.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawDuring the Pre-Closing Period, from the date of this Agreement until the Effective TimeTri-Valley shall authorize and permit HCC, the Company shallits Representatives, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable have access during normal business hours upon reasonable prior notice hours, to all properties, books, records, branch operating reports, branch audit reports, operating instructions and procedures, Tax Returns, contracts and documents, and all other information with respect to its business affairs, financial condition, assets and liabilities as HCC may from time to time reasonably request. Tri-Valley further agrees to continue to respond to and cooperate with HCC and its advisers with respect to the due diligence requests of HCC. Tri-Valley shall permit HCC, its Representatives to make copies of such books, records and other documents and to discuss the business affairs, condition (financial and otherwise), assets and liabilities of Tri-Valley with such third persons, including its directors, officers, employees employees, accountants, counsel and creditors, as is necessary or reasonably appropriate for the purposes of familiarizing itself with the businesses and operations of Tri-Valley, obtaining any necessary Orders, consents or approvals of the Contemplated Transactions by any Governmental Entity and conducting an evaluation of the assets and liabilities of Tri-Valley. Upon reasonable request by HCC, Tri-Valley shall make its chief financial officer, chief credit officer and controller available to discuss with HCC and its Representatives HCC’s ongoing due diligence of Tri-Valley’s operations. Tri-Valley will cause its independent outside auditors to make available to HCC and its accountants, counsel and other agents, such personnel, agents, properties, offices work papers and other facilities documentation of the Company such firm relating to its work papers and its Subsidiaries and to audits of the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to Tri-Valley as may be reasonably requested by HCC in compliance connection with its policies and procedures and any applicable Law at review of the Effective Time); provided, however, that (x) the Company foregoing matters. Tri-Valley shall not be required to provide access to or disclose any such information to the extent where such access or disclosure would result in jeopardize the loss protection of attorney-client privilege or contravene any applicable Law, agreement or fiduciary duty or violate the rights, interests or confidence of the Company or any of its Subsidiaries customer (provided it being agreed that the Company and its Subsidiaries parties shall use their reasonable best commercial efforts to allow for cause such access or disclosure information to be provided in a manner that does would not result in a loss of attorneysuch jeopardy or contravention). No investigation shall affect Tri-client privilege) Valley’s representations and (y) warranties contained herein, or limit or otherwise affect the Company may limit physical access remedies available to the properties, offices and other facilities of the Company and its Subsidiaries HCC pursuant to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsthis Agreement.
(b) Without limiting HCC and Tri-Valley shall, and cause their respective Representatives to, comply with all of their respective obligations under the generality of Confidentiality Agreements, which shall survive the foregoing, the Company covenants and agrees that, between the date termination of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreementterms set forth therein.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement Execution Date until the Effective TimeClosing Date, Seller will, and will cause its Affiliates to, (i) cause the Company shall, to give Buyer Group and shall cause its Subsidiaries to, provide to Parent and Parent’s their Representatives reasonable access to the assets, inventory, employees, offices, properties, and corporate governance and other books and records of the Company and the Business (excepting, in all cases, any such items relating to Delta, American, or any other major airline or Affiliate or consultant or adviser thereto), (ii) cause the Company to furnish to Buyer Group and their Representatives such financial and operating data and other information relating to the Company and the Business as such Persons may reasonably request and (iii) instruct the employees and counsel of Seller to reasonably cooperate with Buyer in its investigation of the Company. Any investigation pursuant to this Section 5.02 shall be conducted only with reasonable advance notice to Seller and the Company and only during normal business hours upon reasonable prior notice and in such manner as not to interfere unreasonably with the officersconduct of Seller’s business or the Company. Notwithstanding the foregoing, employees and other personnelBuyer shall not have access to any of the following (collectively, agents, properties, offices and other facilities “Confidential Documents”): personnel records of the Company and its Subsidiaries and relating to individual performance or evaluation records, or medical histories; information relating to the books and records thereof (including for purposes Third-Party CPAs; any Contracts or other information pursuant to which the Company is bound by confidentiality or non-disclosure obligations with respect thereto; or any other information which in Seller’s good faith opinion is sensitive or the disclosure of conducting regulatory compliance reviews and audits which could subject the Company to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)risk of liability or violation of Laws; provided, however, that (xA) the Company Seller shall not be required obligated to provide use commercially reasonable efforts to request and obtain any consents or waivers necessary for Buyer Group and their Representatives to gain access to or disclose any such information the Confidential Documents to the extent reasonably necessary for Buyer to conduct its due diligence review of the Company (excepting, in all cases, any such access items relating to Delta, American or disclosure would result in any other major airline or Affiliate or consultant or adviser thereto), (B) Schedule 5.02 currently sets forth, and will set forth from and after the loss Execution Date through the Closing Date, a list and description of attorney-client privilege the material facts relating to each Confidential Document that imposes obligations or liabilities of the Company or any of its Subsidiaries (provided that Buyer Group following the Company Closing and its Subsidiaries shall use their for which Seller, despite such commercially reasonable best efforts efforts, did not receive a consent or waiver with respect to allow for such access the confidentiality or non-disclosure in a manner that does not result in a loss of attorney-client privilege) obligations therein, and (yC) without limiting Seller’s obligations under Section 5.01, Seller will continue to update Schedule 5.02 from and after the Company may limit physical access Execution Date until the Closing Date to the propertiesremove Confidential Documents if applicable consents or waivers are obtained, offices and also to supplement such schedule with any other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, Confidential Document that such access would jeopardize the health and safety of any employee contemplates obligations or liabilities of the Company or its Subsidiaries or Buyer Group, and also to maintain the extent necessary to comply accuracy of such schedule in compliance with applicable Lawsthe foregoing clause (ii) of this Section 5.02.
(b) Without limiting Prior to the generality Closing, Seller hereby agrees to, and shall cause its Affiliates to, be bound by and comply with the terms and conditions of the foregoingConfidentiality Agreement, regardless of any termination of the Company Confidentiality Agreement pursuant to its terms prior to the Closing Date, and covenants and agrees thatto keep confidential, between in accordance with the date terms and conditions of the Confidentiality Agreement (in the event that the Confidentiality Agreement has terminated pursuant to its terms, as if the Confidentiality Agreement were still in full force and effect), information provided to or received from, as applicable, the Buyer Group in connection with this Agreement as if such information constituted “Confidential Information” pursuant to such Confidentiality Agreement. After the Closing, Seller and the Effective Timeits Affiliates will hold, the Company shall keep Parent reasonably informed as and will use all commercially reasonable efforts to cause their respective Representatives to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, all confidential documents and information, whether written or oral, concerning the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information except to the extent providing that such information would result was (i) previously known on a non-confidential basis by Seller, (ii) in the loss public domain through no fault of attorney-client privilege of the Company Seller or any of its Subsidiaries Representatives, or (provided iii) later lawfully acquired by Seller from sources other than those related to its prior ownership of the Company. If Seller or any of its Representatives becomes compelled to disclose any information otherwise restricted by this Section 5.02(b) by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer in writing and shall disclose only that the Company and portion of such information which Seller is advised by its Subsidiaries counsel in writing is legally required to be disclosed; provided, however, that Seller shall use their commercially reasonable best efforts to provide obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timeinformation.
(c) Except as otherwise prohibited by applicable LawOn and after the Closing Date, from the date Seller will promptly afford reasonable access to Buyer and its Representatives to its books of this Agreement until the Effective Timeaccount, Parent shallfinancial and other records (including accountant’s work papers), information, employees and shall cause its Subsidiaries to, provide auditors to the Company and extent reasonably necessary for Buyer in connection with any audit, investigation or Proceeding (other than any Proceeding involving Seller) relating to the Company’s Representatives reasonable ; provided that any such access by Buyer shall be conducted during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent shall not unreasonably interfere with the Company’s access to such personnel conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and records prior to the date hereof expenses (including reasonable attorneys’ fees, but excluding reimbursement of Seller for general overhead, salaries and employee benefits) in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsforegoing.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective TimeUpon reasonable prior written notice, the Company shall, and shall cause its each of the Company Subsidiaries to, provide afford to Parent and Parent’s to its Representatives reasonable access during normal business hours upon reasonable during the period prior notice to the officers, employees and other personnel, agents, Effective Time to all of their properties, offices offices, personnel and other facilities books and records and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly to Parent all financial, operating and other data, documents and information concerning its Subsidiaries business, properties and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)may reasonably request; provided, howeverthat any such access shall not interfere unreasonably with the business or operations of the Company or the Company Subsidiaries or otherwise result in any unreasonable interference with the prompt and timely discharge by such employees of their normal duties, and provided, further, that (x) Parent and its Representatives shall coordinate all such access through the Financial Advisor or one or more Company employees as the Company may designate. None of the Company or any Company Subsidiary shall not be required to (i) provide access to or to disclose any such information to the extent where such access or disclosure would reasonably be expected to result in the loss of the attorney-client privilege of the Company or any of its the Company Subsidiaries (provided provided, that the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does would not result in a loss of reasonably be expected to jeopardize the attorney-client privilege) and (y) the Company may limit physical access or contravene any Law, Judgment or binding agreement entered into prior to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, or (ii) provide access to or to disclose such portions of documents or information relating to pricing or other matters that are highly sensitive where such access or disclosure is reasonably likely to result in antitrust difficulties for the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and or any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials of its affiliates (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information access or disclosure to any third party identified by Parent pursuant to procedures reasonably required by the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilegeCompany). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until Until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All all information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with subject to the confidentiality agreement, dated as of May 18, 2011, between the Company and Parent (or an affiliate of Parent) (the “Confidentiality Agreement”), and Parent shall comply with, and cause its Representatives to comply with, the terms thereof.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited During the Interim Period, to the extent permitted by applicable LawLaw and contracts, and subject to the reasonable restrictions imposed from the date time to time upon advice of this Agreement until the Effective Timecounsel, the Company shall, and shall cause its each of the Company Subsidiaries to, provide (i) afford to Parent and Parent’s its Representatives reasonable access during normal business hours and upon reasonable prior advance notice to the officers, employees and other personnel, agents, all of their respective properties, offices offices, books, contracts, commitments and other facilities records and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish reasonably promptly to Parent all information (financial or otherwise) concerning its business and its properties Parent may reasonably request, (ii) reasonably cooperate, at Parent’s sole cost and expense, with Parent’s lenders, including pursuant to Section 6.13 (which cooperation shall include any reasonable restructuring request of Parent or Parent’s lenders reasonably necessary to implement the Debt Financing (provided that neither the Company nor any of the Company Subsidiaries and shall be required to effectuate any such restructuring prior to the books consummation of the transactions contemplated hereby)), and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow iii) permit such environmental inspections as Parent to be in compliance with its policies and procedures and any applicable Law at or Parent’s lenders may reasonably request. Notwithstanding the Effective Time); providedforegoing, however, that (x) the Company shall not be required by this Section 6.3 to provide Parent or its respective Representatives with access to or to disclose any such information (v) materials prepared in connection with or relating to the extent transactions contemplated hereby or the other strategic alternatives contemplated by the Company Board, (w) information that is subject to confidentiality obligations to a third party (provided, however, that Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure), (x) information the disclosure of which would result in the loss of violate any Law, (y) information that is subject to any attorney-client client, attorney work product or other legal privilege or (z) information that the Company reasonably believes is competitively sensitive. Parent shall use its commercially reasonable efforts to minimize any disruption to the business of the Company or any Company Subsidiaries that may result from any requests for access, data or information hereunder. Any access to the properties of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use be subject to the Company’s reasonable security measures and insurance requirements and shall not include the right to perform invasive testing without the Company’s prior written consent, in its sole discretion. Prior to the Effective Time, each of the Parent Parties and Merger Sub shall not, and shall cause their reasonable best efforts to allow for such access respective Representatives and Affiliates not to, contact or disclosure in a manner that does not result in a loss otherwise communicate with the employees of attorney-client privilege) and (y) the Company may limit physical access to or any Company Subsidiary (other than those senior executive officers set forth on Section 6.3(a) of the properties, offices and Company Disclosure Letter) or tenants or other facilities parties with which the Company or any Company Subsidiary has a business relationship regarding the business of the Company and its Subsidiaries to the extent the Company reasonably determines, in light Subsidiaries or this Agreement and the transactions contemplated hereby without the prior written consent of COVID-19, the Company; provided that such access would jeopardize (A) Parent shall have the health and safety of any employee right to contact or otherwise communicate with the lenders of the Company and the Company Subsidiaries without the prior written consent of the Company, and (B) the Company will not unreasonably withhold, condition or delay its Subsidiaries consent to any reasonable request of Parent made to a senior executive officer of the Company set forth on Section 6.3(a) of the Company Disclosure Letter to contact or otherwise communicate with any Anchor Tenant; provided that if the Company fails to respond to any such written request of Parent to contact or otherwise communicate with any Anchor Tenant within three (3) Business Days following the extent necessary Company’s receipt of such request, the Company shall be deemed to comply with applicable Lawshave consented to such contact or communication.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep The Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDAParties will hold, and will cause their Representatives and Affiliates to hold, any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies nonpublic information of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All Company Subsidiaries, including any information obtained by the parties hereto exchanged pursuant to this Section 7.03 shall be kept confidential 6.3, in confidence to the extent required by and in accordance with with, and will otherwise comply with, the terms of the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawLaw or as would be reasonably expected to violate or result in the loss or waiver of any attorney-client (or other legal) privilege, from during the date of this Agreement until the Effective TimePre-Closing Period, the Company shall, shall (and shall cause its the Company Subsidiaries to), under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company or any Company Subsidiary: (i) provide to Parent and Parent’s its Representatives reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records records, work papers and other documents thereof (including for purposes up-to-date employee census documents) and (ii) furnish as promptly as practicable to Parent such information concerning the business, properties, products and services, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews the Company and audits the Company Subsidiaries as Parent or its Representatives may reasonably request; provided that nothing herein shall require the Company to allow Parent (or cause its Company Subsidiaries to) afford such access or furnish such information to be that extent that the Company’s outside legal counsel advising it in compliance writing that doing so would (A) potentially contravene applicable Law, (B) jeopardize any attorney-client (or other legal) privilege or (C) require the disclosure of materials provided to the Company Board or resolutions or minutes of the Company Board, in each case, related to or in connection with its policies and procedures and any applicable Law at the Effective TimeCompany Board’s consideration of the Merger; provided further that, in the case of the foregoing clause (A); provided, however, that (x) the Company shall not be required use reasonable best efforts to provide access to or disclose any such information to the extent such access or disclosure would result in a manner that does not contravene applicable Law, in the loss of attorney-client privilege case of the Company or any of its Subsidiaries foregoing clause (provided that B), the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does would not result in a loss of attorney-client such privilege) , including to the extent requested by Parent and if applicable, by entering into a customary joint defense agreement that would alleviate such loss of privilege, and, in the case of the foregoing clause (y) C), the Company may limit physical shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not result in the disclosure of materials provided to the properties, offices and other facilities Company Board or resolutions or minutes of the Company and its Subsidiaries Board, in each case, related to or in connection with the Company Board’s consideration of the Merger, including if applicable, by redacting any portions of such materials, minutes or resolutions related to the extent Company Board’s consideration of the Merger where such materials, minutes or resolutions include matters that are not related to the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee Board’s consideration of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsMerger.
(b) Without limiting the generality of the foregoing, the Company covenants Pxxxxx and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, Merger Sub hereby agree that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Pxxxxx, Merger Sub or their respective Representatives pursuant to this Section 7.03 6.02 shall be kept confidential governed in accordance with the Confidentiality Agreement.
(ec) No investigation pursuant to this Section 7.03 6.02 shall affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the period prior notice to the officers, employees and other personnel, agents, Effective Time or the termination of this Agreement to all of its properties, offices books and other facilities of records, Contracts and personnel and, during such period, the Company shall furnish, as promptly as reasonably practicable, to Parent all information concerning its business, properties and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow personnel as Parent to may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, or combination of the Company with, any other Person, (ii) any Company Takeover Proposal or (iii) any Intervening Event, or (c) the Company determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Company, violate applicable Law or any of its Subsidiaries (result in antitrust risk for the Company; provided that the Company and will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions such information as is necessary to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information permit disclosure to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 6.01 shall be kept confidential in accordance with subject to the confidentiality letter agreement dated December 22, 2018 between the Company and Parent, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof until the Closing (or until the earlier, valid termination of this Agreement in accordance with Section 9.01), upon reasonable notice, Seller shall: (i) afford Purchaser and its Representatives (including any financing sources) reasonable access to the personnel, properties and Books and Records of the Business; and (ii) furnish to Purchaser and its Representatives (including any financing sources) such additional operating data and other information regarding the Business (or copies thereof) as Purchaser may from time to time reasonably request (including for purposes of conducting environmental assessments); provided, however, that any such access or furnishing of information shall be subject to Seller’s reasonable insurance requirements and conducted at Purchaser’s expense, during normal business hours, under the supervision of Seller or its Representatives and in such a manner as not to unreasonably interfere with the normal operations of the business of Seller or the Business Subsidiaries and shall not include the right to perform any “invasive” testing or soil, air or groundwater sampling, including without limitation, any environmental site assessment, without Seller’s prior consent; provided, further, that neither Seller nor any of the Business Subsidiaries shall be required to disclose any information to Purchaser if such disclosure would, in Seller’s reasonable judgment: (w) contain information that in the reasonable, good faith judgment of Seller is competitively sensitive; (x) jeopardize any attorney-client or other legal privilege or the protections of the work product doctrine; (y) contravene any applicable Laws or Contract to which Seller or any of the Business Subsidiaries is a party as of the date hereof; or (z) expose Seller or any of the Business Subsidiaries to risk of liability for disclosure of sensitive or personal information; provided that, in any such case, Seller or the applicable Business Subsidiaries shall provide such information in redacted form as necessary to preserve such privilege or protections or comply with such Law or Contract or otherwise make appropriate substitute disclosure arrangements, to the extent practicable. Notwithstanding anything herein to the contrary, Seller shall not be required to provide any U.S. federal consolidated income Tax Return (or any consolidated, combined, affiliated, unitary or similar income Tax Return) filed (or required to be filed after the Closing Date) by Seller or any of its Affiliates as the “common parent” of an “affiliated group” (within the meaning of Section 1504 of the Code or any similar or analogous provision of applicable income Tax law), or any portion thereof, in any form or manner whatsoever (each such Tax Return described in this sentence, a “Seller Affiliated Group Return”) to any other Person pursuant to this Agreement.
(b) The terms of the Confidentiality Agreement, dated as of March 9, 2018, between the Company and Purchaser (the “Confidentiality Agreement”), shall continue in full force and effect (including with respect to any information provided to Purchaser pursuant to Section 6.06(a)) until the Effective TimeClosing, at which time such Confidentiality Agreement shall terminate, other than with respect to the confidentiality and non-use obligations contained therein with respect to Evaluation Material (as defined therein) not related to the Business, which obligations shall continue in full force and effect for a period of five (5) years from the Closing Date. If this Agreement is, for any reason, terminated prior to the Closing, the Company Confidentiality Agreement shall continue in full force and effect in all respects. Notwithstanding anything herein to the contrary, the parties agree and acknowledge that the standstill and similar restrictions in the Confidentiality Agreement shall not apply upon the execution and delivery of this Agreement solely to the extent required to permit any action contemplated hereby and in accordance herewith and solely until any valid termination of this Agreement in accordance with its terms.
(c) For a period of five (5) years from the Closing Date (provided that with respect to trade secrets of the Business, the confidentiality obligations in this Section 6.06(c) shall remain in effect for so long as the relevant information remains a trade secret under applicable Law), Seller shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice hold in confidence any nonpublic information relating to the officersBusiness, employees and other personnel, agents, properties, offices and other facilities regardless of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be form in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any which such information was communicated or maintained, and all notes, reports, analyses, compilations, studies, files or other documents or materials, whether prepared by such party or their Affiliates to the extent such access or disclosure would result in relating to the loss of attorney-client privilege of the Company or any of its Subsidiaries (Business; provided that the Company and its Subsidiaries foregoing restriction shall use their reasonable best efforts not apply to allow for such access information that is or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access becomes generally available to the properties, offices and public other facilities than through an action or inaction by Seller or its Representatives in breach of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date terms of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time6.06.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Acxiom Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date hereof to the Effective Time or the earlier termination of this Agreement until the Effective TimeAgreement, upon reasonable prior written notice, the Company shall, and shall use its reasonable best efforts to cause its Subsidiaries subsidiaries, officers, directors and employees to, provide to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice to afford the officers, employees employees, auditors, consultants and other personnelauthorized representatives of Parent reasonable access, agentsconsistent with applicable law, at all reasonable business hours to its officers, employees, properties, offices offices, and other facilities and to all books and records, and shall furnish Parent with all financial, operating and other data and information as Parent, through its officers, employees or authorized representatives, may from time to time reasonably request (which access shall include the provision of such data, periodic and other reports and other information as is reasonably necessary to facilitate Parent’s ability to conduct transition planning and to remain informed regarding material aspects of the business and operations of the Company and its Subsidiaries subsidiaries, including monthly and quarterly operating reports in the form currently prepared by the Company). Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the books business or operations of the Company or its subsidiaries or otherwise result in any significant interference with the prompt and records thereof (including for purposes timely discharge by such employees of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); providedtheir normal duties. In addition, however, that (x) the Company shall not use its reasonable best efforts to furnish to Parent copies of any filing it intends to make with the SEC reasonably in advance of such filing. Neither the Company nor any of its subsidiaries shall be required to provide access to or to disclose any such information to the extent where such access or disclosure would result in violate or prejudice its rights or the loss rights of any of its officers, directors or employees, jeopardize any attorney-client privilege or contravene any law, rule, regulation, order, judgment, decree or binding agreement entered into prior to the date of this Agreement; provided, however, that in the Company or any of its Subsidiaries (provided event that the Company and its Subsidiaries shall use their reasonable best efforts relies on this sentence to allow for such withhold access or disclosure in a manner that does not result in a loss disclosure, the Company shall, to the extent permitted by law and the protection of such attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities notify Parent of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee nature of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawswithheld information.
(b) Without limiting the generality Each of the foregoingParent and Merger Sub will hold and treat and will cause its officers, the Company covenants employees and agrees that, between the date of this Agreement other representatives to hold and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, treat in confidence all documents and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that concerning the Company and its Subsidiaries shall use their reasonable best efforts subsidiaries furnished to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof Merger Sub in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained transactions contemplated by the parties hereto pursuant to this Section 7.03 shall be kept confidential Agreement in accordance with the Confidentiality Agreement, dated May 7, 2007, between the Company and Cerberus Capital Management, L.P. (the “Confidentiality Agreement”) which Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the The Company shall, shall afford to Acquiror and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of the Company's properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, shall furnish promptly upon request (i) to the extent not provi ded for pursuant to the preceding clause, all financial records, ledgers, workpapers and other personnel, agents, properties, offices and other facilities sources of financial information possessed or controlled by the Company or its accountants deemed by Acquiror or its Representatives necessary or useful for the purpose of performing an audit of the Company and its Subsidiaries certifying financial statements and financial information, and (ii) such other information concerning any of the foregoing as Acquiror shall reasonably request. In addition, each Party shall furnish promptly upon request a copy of each report, schedule and other document filed or received by any of them pursuant to the books and records thereof requirements of any Applicable Law (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (xwithout limitation federal or state securities laws) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of the Company filed by it or any of its Subsidiaries with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, operations, properties, prospects, personnel, condition, (provided financial or other), or results of operations. The Company and Acquiror acknowledge that they have heretofore executed a confidentiality agreement, dated December 27, 1996 (the "Confidentiality Agreement"), which separately and as incorporated herein shall remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company and by Acquiror or its Subsidiaries shall use their reasonable best efforts to allow for such access Representatives or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of by the Company or its Subsidiaries Representatives from Acquiror, pursuant to Section 5.1(a), the Confidentiality Agreement or otherwise, shall be subject to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality provisions of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(eb) Subject to the terms and conditions the Confidentiality Agreement, Acquiror and the Company may disclose such information as may be necessary in connection with seeking allGovernmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the event that this Agreement is terminated in accordance with its terms, Acquiror and the Company shall each promptly redeliver all non-public written material provided pursuant to this Section or any other provision of this Agreement or otherwise in connection with the Merger and the Transactions and shall not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which shall be delivered to independent counsel for such party.
(c) No investigation pursuant to this Section 7.03 5.1 shall affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party Party hereto or any condition to the obligations of the parties Parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, the The Company shallshall afford to Parent, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives officers, employees, accountants, counsel, consultants, financial advisors and other Representatives, reasonable access during normal business hours upon reasonable during the period prior notice to the officers, employees earlier of the Effective Time and other personnel, agents, the termination of this Agreement to all of its and its Subsidiaries’ properties, offices books and other facilities records and to those employees of the Company and its Subsidiaries and to whom Parent reasonably requests access (but not including, unless consented to by the books and records thereof Company (including for purposes of conducting regulatory compliance reviews and audits to allow Parent such consent not to be in compliance with its policies and procedures and any applicable Law at the Effective Timeunreasonably withheld, conditioned or delayed); provided, howeveraccess to perform physical or environmental examinations to take samples of soil, that (x) ground water, air or products), and, during such period, the Company shall not furnish to Parent, as promptly as reasonably practicable, all information concerning its and its Subsidiaries’ business, properties and personnel as Parent may reasonably request. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose any such information to where the extent Company reasonably determines that such access or disclosure would result in (i) jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries or (provided that the Company and its Subsidiaries shall use their reasonable best efforts ii) conflict with or violate any Law (including antitrust Laws) or any Contract to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of which the Company or any of its Subsidiaries is a party (provided with respect to each of clauses (i) and (ii) above, it being agreed that the Company shall give notice to Parent of the fact that it is withholding such information or documents and its Subsidiaries thereafter the Company and Parent shall use their respective reasonable best efforts to provide cause such information to be provided in a manner that does would not result in reasonably be expected to cause such a loss of attorney-client privilegejeopardy, breach, waiver or violation). In order No investigation or access permitted pursuant to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, this Section 7.02 shall affect or be deemed to modify any representation or warranty made by the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on hereunder. Except for disclosures expressly permitted by the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective TimeConfidentiality Agreement, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement, keep confidential and not disclose, and shall cause its officers, employees, accountants, counsel, consultants, financial advisors and other Representatives to keep confidential and not disclose, all Evaluation Material (as defined in the Confidentiality Agreement) directly or indirectly received from the Company or its Representatives.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawThe Company shall afford to Buyer and their respective accountants, from the date of this Agreement until the Effective Timecounsel, the Company shall, financial advisors and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives other representatives reasonable access during normal business hours upon reasonable notice throughout the period prior notice to the officers, employees and other personnel, agents, Closing Date to their respective properties, offices and other facilities of the Company and its Subsidiaries and to the books books, contracts, commitments, personnel and records thereof (including for purposes of conducting regulatory compliance reviews and, during such period, shall furnish promptly such information concerning its businesses, properties and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)personnel as Buyer shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company’s operations and must be conducted in accordance with the procedures established by the Company. All nonpublic information provided to, or obtained by, Buyer in connection with the transactions contemplated hereby shall be “Evaluation Material” for purposes of the Confidentiality Agreement dated July 12, 2007 between Schottenstein Stores Corporation and Buyer (the “Confidentiality Agreement”), the terms of which shall continue in force; provided that (x) Buyer and the Company may disclose such information as may be necessary in connection with seeking any regulatory approvals. Notwithstanding the foregoing, the Company shall not be required to provide access any information which it reasonably believes it may not provide to Buyer by reason of applicable law, rules or disclose regulations, which constitutes information protected by attorney/client privilege, or which any such information to the extent such access Seller or disclosure would result in the loss of attorney-client privilege of the Company is required to keep confidential by reason of contract, agreement or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts other obligation to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Lawsthird parties.
(b) Without limiting Each of Buyer and the generality Sellers, each on behalf of itself individually and, with regard to Sellers, to the extent that such Seller has such books and records in its possession as of the foregoingClosing Date, agrees to (i) hold all of the books and records of the Company existing on the Closing Date and not to destroy or dispose of any thereof for a period of three (3) years from the Closing Date or such longer time as may be required by law and (ii) following the Closing Date to afford Buyer and each Seller, as applicable, their accountants and counsels, during normal business hours, upon reasonable request, reasonable access to such books, records and other data and to the employees of the Company and any affiliates to the extent that such access may be requested for any purpose related to the preparation of Tax Returns, the Company covenants and agrees thatcalculation of Contingent Consideration or Final Reconciliation or in order for Buyer to meet its Form 8-K obligations within the applicable time period required by such form, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as at no cost to the Company’s FDA regulatory strategy with respect to nonany Seller (other than for reasonable out-immaterial communications with FDA, preof-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-goingpocket expenses), and medical technology, including by providing copies of material information to Parent; provided, however that the Company such access rights shall (i) not be required to provide such information to exercised in a manner that unreasonably interferes with the extent providing such information would result in the loss of attorney-client privilege business of the Company or any of its Subsidiaries the Sellers, as applicable, and (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information ii) be exercised in a manner so as to maintain the privileged nature of any information that does not result in a loss of may be subject to attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Iconix Brand Group, Inc.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from between the date of this Agreement until and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Article VII, upon reasonable advance notice, the Company shall, and shall cause its Subsidiaries to, to (i) provide to Parent and Parent’s its Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agents(provided that the Company may require that access to employees that are not executive officers be accompanied by an appropriate employee of the Company), properties, books, offices and other facilities facilities, Contracts, Tax Returns and records of the Company (for the avoidance of doubt, including correspondence and other exchanges between the Company and its Subsidiaries and any Governmental Authority) and its Subsidiaries (other than any of the foregoing that relate to the books negotiation and records thereof execution of this Agreement, the process that led to the negotiation and execution of this Agreement or, subject to the disclosure requirements set forth in Section 5.3, to any Takeover Proposal) and (including for purposes of conducting regulatory compliance reviews ii) furnish promptly such financial, operational and audits to allow other data and information concerning its business, operations, personnel, assets, liabilities and properties as Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)may reasonably request; provided, howeverthat any such access shall be conducted at Parent’s expense, that (x) at a reasonable time, under the supervision of appropriate personnel of the Company shall or its applicable Subsidiary and in such a manner as not be required to provide access to interfere unreasonably with the normal business or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege operations of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries Subsidiaries. Nothing herein shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of require the Company or any of its Subsidiaries to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (provided that A) jeopardize any attorney-client or other legal privilege (so long as the Company and its Subsidiaries shall use their reasonable best efforts have reasonably cooperated with Parent to provide permit such inspection of or to disclose such information in on a manner basis that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA waive such privilege with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials thereto) or (whether new or on-going), medical technology and B) contravene any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from fiduciary duty or binding agreement entered into prior to the date of this Agreement until (including any confidentiality agreement to which the Effective Time, Parent shall, and shall cause Company or any of its Subsidiaries to, provide to is a party) (so long as the Company and the Company’s Representatives has used commercially reasonable access during normal business hours upon efforts to make appropriate substitute arrangements to permit reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to disclosure not in violation of such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsapplicable Law, agreement or duty).
(db) All No information or knowledge obtained by the parties hereto Parent or Merger Sub pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this 5.2, Section 7.03 5.3 or otherwise shall affect or be deemed to affect or modify any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition contained herein, the conditions to the obligations of the parties heretoto consummate the Transactions in accordance with the terms and provisions hereof or otherwise prejudice in any way the rights and remedies of Parent or Merger Sub hereunder, nor shall any such information, knowledge or investigation be deemed to affect or modify Parent’s or Merger Sub’s reliance on the representations, warranties, covenants and agreements made by the Company in this Agreement.
(c) Information disclosed under this Section 5.2 and otherwise pursuant to this Agreement shall be governed under the letter agreement regarding confidentiality, dated June 16, 2017, between Guarantor and the Company (the “Confidentiality Agreement”). For the avoidance of doubt, the disclosure of information by Parent or any of its Representatives to the Lender Related Parties pursuant to Section 5.10 or otherwise shall not require the prior written approval of the Company pursuant to the Confidentiality Agreement.
Appears in 1 contract
Samples: Merger Agreement (ShoreTel Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by Subject to applicable Law, from between the date of this Agreement until and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Article VII, upon reasonable advance notice, the Company shall, and shall cause its Subsidiaries to, to (i) provide to Parent and Parent’s its Representatives reasonable access during normal business hours upon reasonable prior notice to the officers, employees and other personnel, agentsemployees, properties, books, offices and other facilities facilities, Contracts, Tax Returns and records of the Company (for the avoidance of doubt, including correspondence and other exchanges between the Company and its Subsidiaries and any Governmental Authority) and its Subsidiaries (other than any of the foregoing that relate to the books negotiation and records thereof execution of this Agreement, the process that led to the negotiation and execution of this Agreement or, subject to the disclosure requirements set forth in Section 5.4, to any Takeover Proposal) and (including for purposes of conducting regulatory compliance reviews ii) furnish promptly such financial, operational and audits to allow other data and information concerning its business, operations, personnel, assets, liabilities and properties as Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time)may reasonably request; provided, howeverthat any such access shall be conducted at Parent’s expense, that (x) at a reasonable time, under the supervision of appropriate personnel of the Company shall or its applicable Subsidiary and in such a manner as not be required to provide access to interfere unreasonably with the normal business or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege operations of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries Subsidiaries. Nothing herein shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of require the Company or any of its Subsidiaries to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (provided that A) jeopardize any attorney-client or other legal privilege (so long as the Company and its Subsidiaries shall use their reasonable best efforts have reasonably cooperated with Parent to provide permit such inspection of or to disclose such information in on a manner basis that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA waive such privilege with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials thereto) or (whether new or on-going), medical technology and B) contravene any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from fiduciary duty or binding agreement entered into prior to the date of this Agreement until (including any confidentiality agreement to which the Effective TimeCompany or any of its Subsidiaries is a party) (so long as the Company has used reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such applicable Law, Parent shallagreement or duty); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and shall cause its Subsidiaries todisclosure may be limited to external counsel for Parent, provide to the extent that the Company and determines doing so may be reasonably required for the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent purpose of complying with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsapplicable Antitrust Laws.
(db) All No information or knowledge obtained by the parties hereto Parent or Merger Sub pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this 5.3, Section 7.03 5.4 or otherwise shall affect or be deemed to affect or modify any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition contained herein, the conditions to the obligations of the parties heretoto consummate the Transactions in accordance with the terms and provisions hereof or otherwise prejudice in any way the rights and remedies of Parent or Merger Sub hereunder, nor shall any such information, knowledge or investigation be deemed to affect or modify Parent’s or Merger Sub’s reliance on the representations, warranties, covenants and agreements made by the Company in this Agreement.
(c) Information disclosed under this Section 5.3 and otherwise pursuant to this Agreement shall be governed under the letter agreement regarding confidentiality, dated September 2, 2016, as amended on February 13, 2017, between American Securities LLC and the Company (the “Confidentiality Agreement”). For the avoidance of doubt, the disclosure of information by Parent or any of its Representatives to the Lender Related Parties pursuant to Section 5.11 or otherwise shall not require the prior written approval of the Company pursuant to the Confidentiality Agreement.
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Subject to Applicable Law, from upon reasonable advance notice to the date of this Agreement until the Effective TimeCompany, the Company shall, shall (and shall cause its the Company Subsidiaries and the Representatives of the Company and each Company Subsidiary to, provide to Parent ) afford Parent’s officers and Parent’s other Representatives reasonable access access, during normal business hours upon reasonable prior notice to throughout the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorneyPre-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure Closing Period in a manner that does not result in a loss of attorney-client privilege) and (y) materially interfere with the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee business of the Company or the Company Subsidiaries, to its Subsidiaries officers, agents, properties, books, Contracts and records; and shall furnish Parent and Merger Sub all financial, operating and other data and information as Parent and Merger Sub through their officers, employees or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality agents, may reasonably request; provided that none of the foregoingCompany, the any Company covenants Subsidiary and agrees that, between the date any Representative of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information access to the extent providing or to disclose such information where such access or disclosure would result in (i) contravene any Applicable Law or Order (provided that the loss Company shall use its commercially reasonable efforts to provide such disclosure on a basis that does not contravene such Applicable Law or Order), (ii) violate the terms of attorney-client privilege any Contract of the Company or any of its Subsidiaries Company Subsidiary (provided that the Company and its Subsidiaries shall use their its commercially reasonable best efforts to provide obtain the required consent to permit such information disclosure), or (iii) reasonably be expected to violate or result in a loss or impairment of any attorney-client, work product privilege or Intellectual Property right (provided that the Company shall use its commercially reasonable efforts to allow for access in a manner that does not result in impair or violate such privileges or rights, including, as appropriate, providing access to external counsel for Parent (subject to Parent entering into a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding customary common interest agreement with the Company’s regulatory relationship with FDA, the Company also agrees on terms mutually agreeable to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time)).
(cb) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All No information or knowledge obtained by the parties hereto Parent or Merger Sub pursuant to Section 6.01(c), this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 6.04 or otherwise shall affect or be deemed to affect or modify any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition made by the Company contained herein, the conditions to the obligations of the parties heretoto consummate the Merger in accordance with the terms and provisions hereof or otherwise prejudice in any way the rights and remedies of Parent or Merger Sub hereunder, nor shall any such information, knowledge or investigation be deemed to affect or modify Parent’s or Merger Sub’s reliance on the representations, warranties, covenants and agreements made by the Company in this Agreement. 61
(c) Each of Parent and Merger Sub acknowledges that all information provided to it or any of its Representatives by the Company or any of its Representatives in connection with this Agreement and the consummation of the Transactions shall be deemed to be Evaluation Material (as defined in the Confidentiality Agreement).
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement until to the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Article 7, the Company shall, and shall cause each of its Subsidiaries to, : (i) use reasonable best efforts to provide to Parent and Parent’s Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably with the business conducted by the Company or any of its Subsidiaries, upon reasonable prior notice to the Company, to the officers, employees and other personnelemployees, accountants, agents, properties, offices and other facilities of the Company and each of its Subsidiaries and to the books and records thereof of the Company and each of its Subsidiaries and (including for purposes ii) use reasonable best efforts to furnish during normal business hours upon prior notice such other information concerning the business, properties, assets and liabilities of conducting regulatory compliance reviews the Company and audits to allow each of its Subsidiaries as Parent to be in compliance with or its policies and procedures and any applicable Law at the Effective Time)Representatives may reasonably request; provided, however, that (x) the Company shall not be required to provide (or to cause any of its Subsidiaries to) afford such access to or disclose any furnish such information to the extent such access or disclosure would that the Company believes that doing so would: (A) result in the loss of attorney-client privilege of (but the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would (B) result in the loss disclosure of attorney-client privilege any trade secrets of third parties or otherwise breach, contravene or violate any obligation contained within any effective Contract existing on the date hereof to which the Company or any of its Subsidiaries is a party, (C) breach, contravene or violate any applicable Law or (D) result in the disclosure of materials provided to the Company Board or resolutions or minutes of the Company Board, in each case, that were provided in connection with the Company Board’s consideration of the Merger or the related sale process. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on clauses (B) or (C) of the immediately preceding sentence, it shall promptly provide notice to Parent that it is withholding such access or information and the basis for such withholding and shall use its reasonable best efforts to enable access to such information to be furnished or made available to Parent and Merger Sub and their respective Representatives without so incurring liability, or contravening applicable Law or Contract or obligation, including by redacting parts of documents or sharing clean summaries of information. The Company may, as it reasonably deems advisable and necessary to comply with applicable Law, designate any competitively sensitive material to be provided to Parent and Merger Sub under this Section 5.2 as “Clean Team Only Material.” Such materials and information contained therein shall be given only to the outside legal counsel or designated Clean Team of the recipient and will not be disclosed by such outside legal counsel or Clean Team members to other employees (including in-house legal counsel), officers, directors or other independent contractors (including accountants and expert witnesses) of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
(b) The Confidentiality Agreement, dated October 28, 2021, by and between the Company and Guarantor (the “Confidentiality Agreement”), including the use restrictions therein, shall apply with respect to information furnished under this Section 5.2 by the Company, its Subsidiaries and their Representatives and otherwise continue to apply after the entrance into this Agreement. No information or access provided to Guarantor, Parent, Merger Sub or any of their respective representatives pursuant to Section 5.2 or otherwise before, at or after the execution and delivery of this Agreement shall limit any rights, remedies or conditions to the obligations of Guarantor, Parent or Merger Sub under this Agreement. Prior to the Closing, each of Guarantor, Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact or otherwise communicate with the employees of the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss (other than members of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-goingsenior leadership team), medical technology and any other subject which would likely have a material impact on or the Company’s current customers, suppliers, or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy distributors of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
that are not customers, suppliers or distributors of Guarantor or its affiliates (d) All information obtained by the parties hereto but subject to Section 5.7), or, except as required pursuant to this Section 7.03 shall be kept confidential in accordance with 5.5, any Governmental Entity, regarding the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representationbusiness of the Company, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations Transactions without the prior written consent of the parties heretoCompany, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawPrior to Closing, from the date of this Agreement until the Effective Time, the Company shall, Seller will (i) give Buyer and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable authorized representatives full access during normal business hours upon reasonable prior notice to the officersPurchased Assets and to all books, employees and other personnel, agents, propertiesrecords, offices and other facilities of the Company and its Subsidiaries and properties relating to the books Business, (ii) permit Buyer to make such inspections thereof as Buyer may reasonably request (including, without limitation, examinations incident to environmental audits), and (iii) cause its officers or other appropriate officials to furnish Buyer with such financial and operating data and other information with respect to the Business as Buyer may from time to time reasonably request. In connection with its due diligence relating to the transactions contemplated hereby, Seller acknowledges that Buyer's independent public accountants will be reviewing and evaluating Seller's Financial Statements and records thereof (including for purposes of conducting regulatory compliance reviews and audits information relating thereto and, accordingly, Seller will provide full cooperation to allow Parent to be such accountants in compliance with its policies such review and procedures and any applicable Law at evaluation. Notwithstanding the Effective Time); providedforegoing, however, that (xthis Section 5.3(a) the Company shall not be required to provide access to or disclose any such information apply with respect to the extent such access or disclosure would result in matters covered by the loss Confidentiality Agreement dated as of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company August 31, 1994 between Seller and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the propertiesLantor, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.Inc.
(b) Without limiting the generality prior consent of Buyer, no other party hereto shall issue any news release or other public announcement or disclosure, or any general public announcement to its employees, suppliers or customers, regarding this Agreement or the transactions contemplated hereby, except as may be required by law, but in which case the disclosing party shall provide Buyer with reasonable advance notice of the foregoingtiming and substance of any such disclosure. After consultation with Seller, Buyer will issue a public press release announcing the Company covenants planned transaction and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any containing certain other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timerelated information.
(c) Except as otherwise prohibited After the Closing, Seller and each Shareholder will hold, and Seller will use its best efforts to cause its officers, directors, employees, lenders, counsel, accountants, representatives, agents, consultants and advisors to hold, in strict confidence all confidential information of the Business, including without limitation customer lists, details of client or consultant contracts, pricing policies, operational methods, marketing plans or strategies, product development techniques or plans, business acquisition plans, new personnel acquisition plans, methods of manufacture, technical processes, designs and design projects, inventions and research projects of any Business learned by any employee of Seller heretofore or hereafter, unless the same information: (i) is currently publicly available or becomes publicly available through no fault of Seller or any Shareholder, or their agents, advisors or other representatives, or another person that Seller or the Shareholders know or have reason to know is subject to confidentiality obligations with respect to such information; or (ii) such information is required by applicable Lawlaw to be disclosed, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide but then only to the Company extent (A) disclosure is required and after giving Buyer such notice of such obligation so that it may seek a protective order or other similar or appropriate relief and (B) Seller and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice Shareholders have undertaken in good faith to Parent’s personnel and records on a basis have such confidential information treated confidentially consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review terms of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Culp Inc)
Access to Information; Confidentiality. (a) Except The Company shall, and shall cause each of its Subsidiaries to, afford to Parent and to Parent’s officers, employees, investment bankers, attorneys, accountants, consultants and other representatives and advisors access upon reasonable advance notice, during normal business hours in a manner as otherwise prohibited by applicable Lawto not interfere unreasonably with the conduct of business of the Company and its Subsidiaries, from during the date period prior to the Effective Time or the termination of this Agreement until the Effective TimeAgreement, to their respective properties, assets, books, records, Contracts, Permits, documents, information, directors, officers and employees, and during such period the Company shall, and shall cause each of its Subsidiaries to, provide furnish to Parent and its representatives, as promptly as reasonably practicable, access to any information or persons concerning its business as may be reasonably and in good faith requested by or on behalf of Parent’s Representatives reasonable access during normal business hours upon reasonable . Following the date of this Agreement and prior notice to the officers, employees and other personnel, agents, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time, subject to applicable Law and the limitations and requirements applicable to Parent’s request and access to other information as set forth in this Section 5.02, Parent may (but shall not be required to); provided, howeverrequest, that in good faith, to (xi) contact and interview any Company Personnel and (ii) review the personnel records and such other information concerning the Company Personnel, and the Company shall consider any such request in good faith (the approval of which shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose any such information to where the extent Company reasonably determines (upon the advice of outside counsel) that such access or disclosure would result in could jeopardize the loss of attorney-client privilege of the Company or any of its Subsidiaries (or conflict with or violate any applicable Law or any Contract, including any confidentiality obligations contained therein, to which the Company or any of its Subsidiaries is a party; provided that the Company and its Subsidiaries shall use their its reasonable best efforts (A) to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilegeprivilege or (B) to develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and (y) the Company. The Company may limit physical shall advise Parent in such circumstances that it is unable to provide access to the properties, offices and other facilities of the Company and its Subsidiaries information requested by Parent pursuant to the extent the Company reasonably determinesimmediately preceding sentence, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to describe the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide reasons why such information to the extent providing such information would result in the loss of attorney-client privilege of the Company is being withheld. No investigation by Parent or any of its Subsidiaries officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives, and no other receipt of information by Parent or any of its officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives shall operate as a waiver or otherwise affect any representation, warranty, covenant, agreement or other provision of this Agreement, or the obligations of the parties (provided that or remedies with respect thereto) or the Company conditions to the obligations of the parties under this Agreement. Parent will hold, and will direct its Subsidiaries shall use their reasonable best efforts officers, employees, investment bankers, attorneys, accountants and other advisors and representatives to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDAhold, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of information received from the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement, and otherwise comply with the Confidentiality Agreement with respect to such information.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (HashiCorp, Inc.)
Access to Information; Confidentiality. (a) Except Prior to the Closing, upon reasonable prior written notice and subject to Applicable Laws relating to the exchange of information (it being agreed that the Company shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which such laws apply), the Company shall, and shall cause each of the Company’s subsidiaries to, afford to the Representatives of Parent and Merger Sub, during normal business hours and in a manner as otherwise prohibited by applicable Lawto not interfere with the normal operation of the Company and its subsidiaries during the period prior to the Closing Date, from reasonable access to the date Company’s and each of this Agreement until the Effective Timeits subsidiaries’ properties, books, contracts, commitments and records, internal audit and compliance reports, and to their officers, accountants, counsel and other representatives and, during such period, the Company shall, and shall cause its Subsidiaries subsidiaries to, provide make available to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice Merger Sub all information concerning their businesses, properties and personnel as Parent and Merger Sub may reasonably request to effect the officers, employees and other personnel, agents, properties, offices and other facilities consummation of the Company and its Subsidiaries and to transactions contemplated by this Agreement, including, as may be requested by Parent, reasonable documentation in support of the books and records thereof (including for purposes of conducting regulatory compliance reviews and audits to allow Parent estimates set forth in the Closing Funds Certificate to be in compliance with its policies and procedures and any applicable Law at the Effective Timedelivered as contemplated by Section 8.2(d); provided, however, that (x) neither Parent nor Merger Sub shall perform, or request or cause to be performed, intrusive soil or groundwater sampling at any property of the Company or its subsidiaries without the prior written consent of the Company. No investigation by Parent or other information received by Parent shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Company hereunder. The foregoing shall not be required to provide access to or disclose any such information to the extent such access or disclosure would result in the loss of attorney-client privilege of require the Company or any of its Subsidiaries (provided subsidiaries to permit any inspection, or to disclose any information, that the Company and its Subsidiaries shall use in their reasonable best efforts judgment is reasonably likely to allow for such access or disclosure in a manner that does not result in a loss the waiver of any attorney-client privilege (the reasonable likelihood of any such disclosure resulting in the waiver of attorney-client privilegeprivilege having been determined in consultation with outside legal counsel) and (y) or the disclosure of any trade secrets of third parties if the Company or its subsidiary, as the case may limit physical access be, shall have used commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure. The Company shall have the right to have one or more of its Representatives present at all times during any such reviews, examinations or discussions. Prior to the propertiesClosing, offices and other facilities without the prior written consent of the Company Company, neither Parent nor Merger Sub shall, and its Subsidiaries to the extent the Company reasonably determinesParent and Merger Sub shall cause their Representatives not to, in light of COVID-19contact any customers, that such access would jeopardize the health and safety of any employee suppliers or competitors of the Company or its Subsidiaries subsidiaries outside of the ordinary course of business of Parent or to Merger Sub regarding the extent necessary to comply with applicable Lawsbusiness, operations or prospects of the Company or regarding this Agreement or the transactions contemplated hereby.
(b) Without limiting Prior to the generality of the foregoingClosing, the Company covenants and agrees that, between the date (i) any information provided to or obtained by Parent or Merger Sub pursuant to this Section 6.4 or any other provision of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as will be subject to the Company’s FDA regulatory strategy terms of the Confidentiality Agreement and must be held by Parent and Merger Sub in accordance with respect and be subject to non-immaterial communications the terms and conditions of the Confidentiality Agreement and (ii) each of Parent and Merger Sub agree to be bound by and comply with FDA, pre-submissions to FDA, submissions to FDAthe provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including such provisions are hereby incorporated herein by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Timereference.
(c) Except as otherwise prohibited set forth in Section 7.3, subject to entering into a confidentiality agreement with the Company that is reasonably acceptable to the Company and such Stockholders from and after the Closing, in connection with any reasonable business purpose relating to the Stockholders’ ownership of the capital stock of the Company or their, or any of their affiliates’, status as a current or former officer, manager or stockholder of the Company or any of its subsidiaries (including preparation of governmental or regulatory reporting obligations, or the resolution of any claims made against or incurred by applicable Lawthe Stockholders in respect of periods prior to the Closing), from for a period of six (6) years (or such longer period as may be required by Applicable Laws) after the date of this Agreement until the Effective TimeClosing, Parent shall cause the Surviving Corporation and its subsidiaries to (i) retain the books and records relating to the Surviving Corporation and its subsidiaries with respect to periods prior to the Closing in a manner reasonably consistent with the prior practice of the Company and its subsidiaries, and (ii) upon reasonable advance notice and subject to Applicable Laws relating to the exchange of information (it being agreed that Parent shall cause the Surviving Corporation and its subsidiaries to make reasonable and appropriate substitute disclosure arrangements under circumstances in which such laws apply), Parent and the Surviving Corporation shall, and shall cause each of the Surviving Corporation’s subsidiaries to, afford to the Stockholders and their respective Representatives and the Stockholder Representative, during normal business hours and in manner so as not to interfere with the normal operation of the Surviving Corporation or its subsidiaries following the Closing Date, reasonable access to the Surviving Corporation’s and each of its subsidiaries’ properties, books, contracts, commitments and records, and to their officers, employees, accountants, counsel and other representatives and, during such period, the Surviving Corporation shall, and shall cause its Subsidiaries subsidiaries to, provide make available to the Company Stockholders and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s Stockholder Representative all information concerning their businesses, properties and personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsas they may reasonably request.
(d) All information obtained For record-keeping and dispute resolution purposes only, the MDP Stockholder and Other Stockholders may retain (i) one (1) copy of the materials included in the data room organized by the parties hereto pursuant MDP Stockholder and Other Stockholders or as provided separately to this Section 7.03 shall be kept confidential Parent, each in accordance connection with the Confidentiality transactions contemplated by this Agreement.
, together with a copy of all documents referred to in such materials, (eii) No investigation pursuant to all internal correspondence and memoranda, valuations, investment banking presentations and bids received from others in connection with the transactions contemplated by this Section 7.03 shall affect any representationAgreement, warranty, covenant and (iii) a copy of all financial information and all other accounting records prepared or agreement used in this Agreement of any party hereto or any condition to connection with the obligations preparation of the parties heretoFinancial Statements.
Appears in 1 contract
Samples: Merger Agreement (Transunion Corp.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its (and its Subsidiaries') properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by any of them pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by any of them with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, agentsoperations, properties, offices prospects, personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, (A) all financial records, ledgers, workpapers and other facilities sources of financial information processed or controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and the Company and its Subsidiaries taken as a whole and certifying financial statements and financial information and (B) all other information relating to the books Company, its Subsidiaries and records thereof Stockholders that VIALOG or its Representatives requires, in either case for inclusion in or in support of the Financing Document, and (including iii) such other information concerning any of the foregoing as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for purposes the benefit of conducting regulatory compliance reviews the parties hereto, VIALOG will hold and audits will use commercially reasonable efforts to allow Parent cause the Representatives of VIALOG to be in compliance with its policies hold, and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required will hold and will use commercially reasonable efforts to provide access to or disclose any such information to cause the extent such access or disclosure would result in the loss of attorney-client privilege Representatives of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determineshold, in light of COVID-19, that such access would jeopardize the health strict confidence all non-public documents and safety of any employee of the Company information furnished (whether prior or its Subsidiaries subsequent hereto) to VIALOG or to the extent necessary to comply with applicable Laws.
(b) Without limiting Company, as the generality of the foregoingcase may be, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementMerger and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) The Company and VIALOG acknowledge that the Company and VIALOG executed a Confidential Disclosure Agreement dated May 10, 1996, and a Second Confidential Disclosure Agreement dated May 31, 1996, (collectively, the "Confidentiality Letter"), which separately and as incorporated in this Agreement will remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company by VIALOG, or its Representatives or by the Company or its Representatives from VIALOG pursuant to Section 6.1(a), the Confidentiality Letter or otherwise will be subject to the provisions of the Confidentiality Letter.
(d) No investigation pursuant to this Section 7.03 shall 6.1 will affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Call Points Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from From the date of this Agreement hereof until the Effective TimeClosing Date, Seller to the extent permitted by Applicable Law will (i) give, and will cause the Company shalland each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives other authorized representatives reasonable access during normal business hours upon reasonable prior notice to the officersoffices, employees properties (including for purposes of performing Phase I environmental assessments), books and other personnel, agents, properties, offices and other facilities records of the Company and its the Subsidiaries and to the books and records thereof of Seller relating to the Company and the Subsidiaries and (ii) furnish, and will cause the Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Company or any Subsidiary as such Persons may reasonably request. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Company. Notwithstanding the foregoing, Buyer shall not have access to (A) personnel records of the Company and the Subsidiaries relating to individual performance or evaluation records, medical histories or other information which in Seller’s good faith opinion is sensitive or the disclosure of which could subject the Company or any Subsidiary to risk of liability or (B) any information or documentation that would in the reasonable discretion of Seller waive any attorney-client privilege, attorney work product protection or other legal privilege applicable to such information or documentation or any other applicable legal privilege. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller hereunder.
(b) After the Closing, Seller and its Affiliates will hold, and will use their reasonable best efforts to cause their respective officers, directors, employees, accountants, counsel, consultants, advisors and agents to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of Applicable Law, all confidential documents and information concerning the Company and the Subsidiaries, except to the extent that such information can be shown to have been (i) deemed free of such restrictions in writing by Buyer, (ii) previously known on a nonconfidential basis by Seller or its Affiliates, (iii) in the public domain through no fault of Seller or its Affiliates, (iv) later lawfully acquired by Seller from sources other than those related to its prior ownership of the Company and the Subsidiaries, (v) legally required to be disclosed by subpoena, other legal process or requests pursuant to investigation by any Governmental Authority or any Applicable Law or (vi) independently developed by Seller or its Affiliates without use or reference to such confidential information; provided that Seller may disclose such information to its officers, directors, employees, accountants, counsel, consultants, advisors and agents in connection with the transactions contemplated by this Agreement so long as such Persons are informed by Seller of the confidential nature of such information and are directed by Seller to treat such information confidentially. Seller shall be responsible for the breach of this Section 5.02(b) by its Affiliates and their respective officers, directors, employees, accountants, counsel, consultants, advisors and agents.
(c) On and after the Closing Date, Seller shall retain and will afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent reasonably necessary or useful for purposes Buyer in connection with any audit, financing, investigation, dispute or litigation relating to the Company or any Subsidiary; provided that any such access by Buyer shall not unreasonably interfere with the conduct of conducting regulatory compliance reviews the business of Seller. Buyer shall bear all of the out-of-pocket costs and audits to allow Parent to be expenses (including attorneys’ fees and expenses) reasonably incurred in compliance connection with its policies and procedures and any applicable Law at the Effective Time)foregoing; provided, however, that (x) the Company Seller shall not be required to provide access to or disclose any such information to the extent or provide such access or if such disclosure would result would, in the loss of Seller’s reasonable discretion, (i) jeopardize any attorney-client privilege or (ii) contravene any Applicable Laws or binding agreement entered into prior to the date hereof. Unless otherwise consented to in writing by Buyer, Seller shall not be permitted, for a period of five years following the Closing Date, to destroy, alter or otherwise dispose of any material books and records having material information with respect to the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts Subsidiary relating to allow for such access periods on or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon Closing Date without first giving reasonable prior written notice to Parent’s personnel Buyer and offering to surrender to Buyer such books and records on a basis consistent with the Companyor such portions thereof at Buyer’s access to such personnel sole cost and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsexpense.
(d) All information obtained by the parties hereto pursuant to this Section 7.03 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise if prohibited by any applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and Group shall cause its Subsidiaries to, provide afford to Parent and to Parent’s Representatives Representatives, reasonable access during normal business hours upon reasonable prior notice to (under the officers, employees supervision of appropriate personnel and other personnel, agents, properties, offices and other facilities in a manner that does not unreasonably interfere with the normal operation of the business of the Company and Group) during the Pre-Closing Period to its Subsidiaries and to the properties, books and records thereof (including for purposes of conducting regulatory compliance reviews records, Contracts and audits personnel, and, during such period, the Company Group shall furnish, as promptly as reasonably practicable, to allow Parent to such information concerning its business, properties and personnel as Parent may reasonably request; provided that any such access shall be in compliance with its policies and procedures afforded and any applicable Law such information shall be furnished at Parent’s expense. Notwithstanding the Effective Time); providedimmediately preceding sentence, however, that (x) the Company Group shall not be required to provide afford access to or disclose any such furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or alternative transactions considered by the Company Board, (ii) any Company Takeover Proposal or (iii) any Intervening Event, or (c) the Company Group determines in good faith after consulting with counsel that affording such access or disclosure furnishing such information would result in jeopardize the loss of attorney-client privilege of the Company Group, violate applicable Law or any of its Subsidiaries (result in antitrust risk for the Company Group; provided that the Company and Group will use its Subsidiaries shall use their reasonable best efforts to allow obtain any required consents for the disclosure of such access information and take such other reasonable action (including entering into a joint defense agreement or disclosure in a manner that does not result in a similar arrangement to avoid loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable Laws.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information as is necessary to the extent providing permit disclosure to Parent without jeopardizing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege), violating applicable Law or resulting in such antitrust risk, as applicable. In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto exchanged pursuant to this Section 7.03 7.01 shall be kept confidential subject to the confidentiality letter agreement in accordance with effect between the Company and Parent, as amended (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
Samples: Merger Agreement (TSR Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from During the period commencing on the date hereof and continuing until the earlier of (x) the termination of this Agreement until or (y) the Effective Time, : the Company shall, and shall cause each of its Subsidiaries to, provide afford to Parent and Parent’s Representatives reasonable access during normal business hours upon reasonable prior notice (subject to the officers, employees Company’s reasonable security measures and other personnel, agents, properties, offices insurance requirements and other facilities under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the operation of the business of the Company and its Subsidiaries and Subsidiaries) to the their respective officers, management level employees, properties, books and records thereof and Contracts as promptly as reasonably practicable, as Parent may reasonably request (including but not for purposes the conduct of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Timesampling, testing or other invasive analysis of soil, water, air, building materials or other structures, equipment, materials or wastes); provided, however, that (x) Parent shall reimburse the Company for any reasonable out-of-pocket expenses incurred by the Company or any of its Subsidiaries arising out of affording any such access and furnishing any such information. Notwithstanding the immediately preceding sentence, neither the Company nor any of its Subsidiaries shall not be required to provide afford access to or disclose any such furnish information to the extent (i) such information is subject to the terms of a confidentiality obligation with a third party, (ii) relating to the applicable portions of the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board or any committee thereof) where the Company Board or such committee, as applicable, discussed the Transactions or any similar transaction or proposed transaction between the Company and any other Person or (iii) the Company reasonably determines in good faith that affording such access or disclosure furnishing such information would (A) result in the loss disclosure of trade secrets of third parties, (B) cause competitive harm to the Company or its Subsidiaries, (C) expose the Company to risk of liability under data protection Laws for disclosure of Personal Information, (D) jeopardize the attorney-client or other privilege of the Company or any of its Subsidiaries or (E) violate applicable Law (provided that the Company and its Subsidiaries shall use their commercially reasonable best efforts to allow for the disclosure of such access information (or disclosure as much of it as reasonably possible) in a manner that does not not, in the case of clause (D), result in a loss of attorney-client (or other legal) privilege) and , or, in the case of clause (y) E), result in a violation of applicable Law). Notwithstanding anything to the Company may limit contrary in this Section 5.7(a), any physical access to the properties, offices and other facilities of the Company and its Subsidiaries may be limited to the extent the Company reasonably determines, determines in good faith that such limitation is necessary in light of COVID-19any Emergency Measures, that including if providing such access would jeopardize reasonably be expected to pose a material risk to the general health and safety of any employee the Representatives or commercial partners of the Company or its Subsidiaries. Nothing in this Section 5.7(a) will be construed to require the Company or its Subsidiaries or any of their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Without limiting the generality of this Section 5.7(a) and notwithstanding anything to the extent necessary contrary herein, the Company shall, and shall cause each of its Subsidiaries to, cooperate with Parent in the preparation of the request for the Private Letter Ruling and in all communications with the Internal Revenue Service with respect thereto, including by using reasonable best efforts to comply provide to Parent access to all information that Parent reasonably requests regarding the Company QDFs, including information regarding the factual history of such Company QDFs and any representations made to, or other communications with applicable Lawsor from, the Internal Revenue Service regarding the Company QDFs.
(b) Without limiting During the generality of the foregoing, the Company covenants and agrees that, between period commencing on the date hereof and continuing until the earlier of (x) the termination of this Agreement and or (y) the Effective Time, Parent shall cause each Vandalia Zero Entity to afford to the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials reasonable access during normal business hours (whether new or on-going), and medical technology, including by providing copies of material information subject to Parent; provided, that ’s reasonable security measures and insurance requirements and under the Company shall not be required to provide such information to the extent providing such information would result in the loss supervision of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company appropriate personnel and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not unreasonably interfere with the operation of the business of the Vandalia Zero Entities) to their respective officers, properties, books and records and Contracts relating to the Vandalia Zero Business as promptly as reasonably practicable, as the Company may reasonably request (but not for the conduct of any sampling, testing or other invasive analysis of soil, water, air, building materials or other structures, equipment, materials or wastes); provided, however, that the Company shall reimburse Parent for any reasonable out-of-pocket expenses incurred by Parent or any of the Vandalia Zero Entities arising out of affording any such access and furnishing any such information. Notwithstanding the immediately preceding sentence, neither Parent nor any of the Vandalia Zero Entities shall be required to afford access or furnish information to the extent (i) such information is subject to the terms of a confidentiality obligation with a third party, (ii) relating to the applicable portions of the minutes of the meetings of the board of directors or similar governing body of Parent or any committee thereof (including any presentations or other materials prepared by or for the board of directors of Parent or any committee thereof) where the board of directors or similar governing body of Parent or such committee, as applicable, discussed the Transactions or any similar transaction or proposed transaction between Parent and any other Person or (iii) Parent determines in good faith that affording such access or furnishing such information would (A) result in the disclosure of trade secrets of third parties, (B) cause competitive harm to Parent or its Subsidiaries, (C) expose Parent to risk of liability under data protection Laws for disclosure of Personal Information, (D) jeopardize the attorney-client or other privilege of Parent or any of its Subsidiaries or (E) violate applicable Law (provided that Parent shall, or shall cause the applicable Vandalia Zero Entities to, use commercially reasonable efforts to allow the disclosure of such information (or as much of it as reasonably possible) in a manner that does not, in the case of clause (D), result in a loss of attorney-client (or other legal) privilege, or, in the case of clause (E), result in a violation of applicable Law). In order Notwithstanding anything to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained contrary in this Section 7.03(b) 5.7(b), any physical access may be limited to the extent Parent determines in good faith that such limitation is intended necessary in light of any Emergency Measures, including if providing such access would reasonably be expected to give Parent, directly or indirectly, pose a material risk to the right to control or direct the FDA regulatory strategy general health and safety of the Representatives or commercial partners of Parent or its Subsidiaries. Notwithstanding anything to the contrary in this Section 5.7(b), in no event shall the Company be entitled to review any consolidated, combined, unitary or similar income Tax Returns or any other Tax Returns other than Tax Returns filed by the Vandalia Zero Entities and relating solely to the Vandalia Zero Business. Nothing in this Section 5.7(b) will be construed to require Parent or its Subsidiaries prior or any of their respective Representatives to the Effective Timeprepare any reports, analyses, appraisals, opinions or other information.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until Until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto will be subject to the terms of the Confidentiality Agreement, and all information exchanged pursuant to this Agreement, including Section 7.03 5.7, shall be kept confidential in accordance with the Confidentiality Agreement.
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition subject to the obligations terms thereof, notwithstanding anything to the contrary in clause (I)(c) or clause (II) of the parties heretoSection 5.
Appears in 1 contract
Samples: Transaction Agreement (Vistra Corp.)
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable LawLaw or for any access or disclosure that would reasonably be expected to violate or result in the loss or waiver of any attorney-client (or other legal) privilege or in the breach or violation of the provisions of any Contract to which the Company is a party (provided that the Company shall use its reasonable best efforts to obtain waivers of any such restrictions), from during the date of this Agreement until the Effective TimePre-Closing Period, the Company shallshall (and shall use reasonable best efforts to cause its Representatives to), and shall cause at Parent’s expense, in such a manner as not to unreasonably interfere with the normal operation of the business of the Company or any of its Subsidiaries to, Subsidiaries: (i) provide to Parent and Parent’s its Representatives reasonable access access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees and other personnelemployees, agents, properties, offices and other facilities of the Company and its the Company Subsidiaries and to the books and records thereof thereof; and (including for purposes ii) furnish as promptly as practicable to Parent such information concerning the business, properties, Company Products, Contracts, assets, liabilities, personnel and other aspects of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required to provide access to and the Company Subsidiaries as Parent or disclose any such information to the extent its Representatives may reasonably request; provided that if such access or disclosure would reasonably be expected to (A) be prohibited by applicable Law, the Company shall use reasonable best efforts to provide such access or disclosure in a manner that does not violate Law or (B) would result in the loss or waiver of any attorney-client (or other legal) privilege or in the breach or violation of the Company or provisions of any of its Subsidiaries (provided that Contract, the Company and its Subsidiaries shall use their its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not result such loss, waiver, breach or violation, including to the extent requested by Parent and if applicable, by entering into a customary joint defense agreement that may alleviate such loss of privilege. Nothing in this Section 6.02 will be construed to require the Company or any of its Representatives to prepare any appraisals or opinions. Any investigation conducted pursuant to the access contemplated by this Section 6.02 will be conducted in a manner that does not result in a loss of attorney-client privilege) and (y) unreasonably interfere with the Company may limit physical access to the properties, offices and other facilities conduct of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee business of the Company or its Subsidiaries create a material risk of damage or destruction to any property or assets of the Company. Any access to the properties of the Company will be subject to the Company’s reasonable security measures, health and safety measures, and insurance requirements, and will not include the right to perform any “invasive” testing or soil, air or groundwater sampling, including any Phase I or Phase II environmental assessments. To the extent necessary to comply with applicable, the Company may satisfy its covenants set forth in this Section 6.02 by electronic means if physical access is not reasonably feasible or is restricted under applicable Lawspublic health or similar Laws or measures.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All information obtained by the parties hereto Pxxxxx, Merger Sub or their respective Representatives pursuant to this Section 7.03 6.02 shall be kept confidential in accordance with the Confidential Disclosure Agreement, dated June 12, 2023 (the “Confidentiality Agreement.
(e) No investigation ”), between Parent and the Company; provided that nothing in the Confidentiality Agreement shall restrict Parent’s or Merger Sub’s ability to take any of the actions expressly contemplated by this Agreement. If this Agreement is terminated pursuant to Article VIII, it is agreed that, notwithstanding anything to the contrary in the Confidentiality Agreement, any term of the confidentiality and non-use obligations under the Confidentiality Agreement will be deemed to be extended to one (1) year following such termination. The Company and Parent hereby agree, in accordance with Section 13 of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed to have been, and hereby is, amended by the provisions of this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.6.02
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from The Company will afford to VIALOG and the date Representatives of this Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries to, provide to Parent and Parent’s Representatives reasonable VIALOG full access during normal business hours upon reasonable throughout the period prior notice to the officersEffective Time to all of its (and its Subsidiaries') properties, employees books, contracts, commitments and records (including without limitation Tax Returns) and, during such period, will furnish promptly upon request (i) a copy of each report, schedule and other personneldocument filed or received by any of them pursuant to the requirements of any Applicable Law (including without limitation federal or state securities laws) or filed by any of them with any Authority in connection with the Transactions or which may have a material effect on their respective businesses, agentsoperations, properties, offices prospects, personnel, condition (financial or other), or results of operations, (ii) to the extent not provided for pursuant to the preceding clause, (A) all financial records, ledgers, workpapers and other facilities sources of financial information processed or controlled by the Company or its accountants deemed by the Accountants necessary or useful for the purpose of performing an audit of the Company and the Company and its Subsidiaries taken as a whole and certifying financial statements and financial information and (B) all other information relating to the books Company, its Subsidiaries and records thereof Stockholders that VIALOG or its Representatives requires, in either case for inclusion in or in support of the Registration Statement, and (including iii) such other information concerning any of the foregoing as VIALOG will reasonably request. Subject to the terms and conditions of the Confidentiality Letter (as defined below), which are expressly incorporated in this Agreement by reference for purposes the benefit of conducting regulatory compliance reviews the parties hereto, VIALOG will hold and audits will use commercially reasonable efforts to allow Parent cause the Representatives of VIALOG to be in compliance with its policies hold, and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company shall not be required will hold and will use commercially reasonable efforts to provide access to or disclose any such information to cause the extent such access or disclosure would result in the loss of attorney-client privilege Representatives of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) and (y) the Company may limit physical access to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determineshold, in light of COVID-19, that such access would jeopardize the health strict confidence all non-public documents and safety of any employee of the Company information furnished (whether prior or its Subsidiaries subsequent hereto) to VIALOG or to the extent necessary to comply with applicable Laws.
(b) Without limiting Company, as the generality of the foregoingcase may be, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(db) All Subject to the terms and conditions of the Confidentiality Letter, VIALOG and the Company may disclose such information obtained as may be necessary in connection with seeking all Governmental and Private Authorizations or that is required by Applicable Law to be disclosed. In the parties hereto event that this Agreement is terminated in accordance with its terms, VIALOG and the Company will each promptly redeliver all non-public written material provided pursuant to this Section 7.03 shall be kept confidential or any other provision of this Agreement or otherwise in accordance connection with the Confidentiality AgreementAsset Purchase and the Transactions and will not retain any copies, extracts or other reproductions in whole or in part of such written material other than one copy thereof which will be delivered to independent counsel for such party.
(ec) The Company and VIALOG acknowledge that the Company and VIALOG executed a Second Confidential Disclosure Agreement dated as of June 30, 1996 (the "Confidentiality Letter"), which separately and as incorporated in this Agreement will remain in full force and effect after and notwithstanding the execution and delivery of this Agreement, and that information obtained from the Company by VIALOG, or its Representatives or by the Company or its Representatives from VIALOG pursuant to Section 6.1(a), the Confidentiality Letter or otherwise will be subject to the provisions of the Confidentiality Letter.
(d) No investigation pursuant to this Section 7.03 shall 6.1 will affect any representation, warranty, covenant representation or agreement warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoparties.
Appears in 1 contract
Access to Information; Confidentiality. (a) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective TimePrior to Closing, the Company Sellers shall, and shall cause its Subsidiaries to, the other members of the Seller Group to (solely to the extent related to the Mexx Europe Business or the Pre-Closing Restructuring) at Parent’s sole cost and expense (such amounts to be advanced or reimbursed to the Company (on behalf of the Sellers) promptly upon request of the Company) (i) provide to Parent and Parent’s its Representatives access at reasonable access during normal business hours times upon reasonable reasonably prior notice to the officers, employees and other personnel, agentsemployees, properties, offices and other facilities of the Company and its Subsidiaries and to the books and records thereof of the Seller Group (including for purposes solely to the extent related to the Mexx Europe Business or the Pre-Closing Restructuring) and the Acquired Companies, and (ii) furnish promptly such information concerning the Mexx Europe Business or the Pre-Closing Restructuring as Parent may reasonably request. Notwithstanding the foregoing, no member of conducting regulatory compliance reviews and audits to allow Parent to be in compliance with its policies and procedures and any applicable Law at the Effective Time); provided, however, that (x) the Company Seller Group shall not be required to provide such access if doing so is reasonably likely to unreasonably disrupt or impair the business or operations of any member of the Seller Group or any of its Subsidiaries. Nothing herein shall require any member of the Seller Group or its respective Subsidiaries to disclose any such information to the extent such access or disclosure (A) would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts reasonably be expected to allow for such access or disclosure in a manner that does not result in a loss waiver of attorney-client privilege, work product doctrine or similar privilege or (B) and (y) the Company may limit physical access would reasonably be expected to the properties, offices and other facilities of the Company and its Subsidiaries to the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of violate any employee of the Company or its Subsidiaries or to the extent necessary to comply with applicable LawsLaw.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as Notwithstanding anything to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDAcontrary in this Agreement, pre-submissions to FDA, submissions to FDA, Parent and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company its Representatives shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control conduct appraisal or direct the FDA regulatory strategy environmental and engineering inspections of the Company real property used by the members of the Seller Group and the Acquired Companies and none of Parent or its Subsidiaries prior Representatives shall have the right to the Effective Timetake and/or analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any building or real property.
(c) Except as otherwise prohibited by applicable Law, from The Buyers and the date of this Agreement until the Effective Time, Parent shallSellers shall comply with, and shall cause its Subsidiaries totheir respective Representatives to comply with, provide all of their respective obligations under the Confidentiality Agreement, dated May 26, 2011 (the “Confidentiality Agreement”), between The Gores Group, LLC and the Company with respect to the Company information disclosed under this Section 6.5. Parent hereby acknowledges and agrees that it is bound by the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel Confidentiality Agreement in the same manner as The Gores Group, LLC and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactionsas though it were an original party thereto.
(d) All information obtained Parent shall have the right to appoint up to two designees (the “Parent Designees”) who shall have the right from and after the date hereof to be present at the headquarters of the Mexx Europe Business at all times during normal business hours (including by the parties hereto pursuant Sellers causing sufficient office space and assistance to this Section 7.03 shall be kept confidential provided at such location to such persons) in accordance order for such designees to assist in transition planning and monitor compliance with the Confidentiality terms of this Agreement.
(e) No investigation pursuant , including Section 6.1 and Section 6.16, and the Sellers shall promptly provide to this Section 7.03 each Parent Designee such access and shall affect any representation, warranty, covenant or agreement promptly furnish such information as such Parent Designee may reasonably request in this Agreement of any party hereto or any condition to the obligations furtherance of the parties heretoforegoing.
Appears in 1 contract
Samples: Merger Agreement (Claiborne Liz Inc)
Access to Information; Confidentiality. (a) Except as otherwise prohibited To the extent not restricted by third party agreement or applicable Law, from the date of this Agreement until the Effective Timelaw, the Company shall, and shall cause its Subsidiaries tosubject to any necessary third-party approvals, provide to allow the Parent and Parent’s Representatives its officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and other advisors reasonable access during normal business hours upon reasonable prior notice hours, at such party’s sole risk and expense, to the officers, employees and other personnel, agentsall facilities, properties, offices personnel, books and other facilities records of the Company and its Subsidiaries subsidiaries. Parent agrees to conduct its investigation in a manner that does not interfere unreasonably with the Company’s or its subsidiaries’ operations and with the prompt and timely discharge by such party’s employees of their duties. Parent agrees to indemnify and hold the Company and its subsidiaries harmless from any and all claims and liabilities, including costs and expenses for loss, injury to or death of any representative of the Parent Parties, and any loss, damage to or destruction of any property owned by the Company or the subsidiaries or others (including claims or liabilities for loss of use of any property) resulting directly or indirectly from the action or inaction of any of the Parent Parties’ representatives during any visit to the books and records thereof (including for purposes business or property sites of conducting regulatory compliance reviews and audits the Company or the subsidiaries prior to allow Parent the completion of the Merger, whether pursuant to be in compliance with its policies and procedures and any applicable Law at this Section 5.2 or otherwise. Notwithstanding the Effective Time); providedforegoing, however, that (x) the Company shall not be required to provide access to or otherwise disclose any information if such information to the extent is subject to, or such access or disclosure would result in jeopardize, the loss of attorney-client privilege, work product doctrine or other applicable privilege of the Company concerning legal proceedings or any of its Subsidiaries (governmental investigations; provided that the Company and its Subsidiaries shall use their its commercially reasonable best efforts to allow for (A) obtain the required consent of such Third Party to provide such access or disclosure in a manner disclosure, (B) develop an alternative to providing such information so as to address such matters that does not result in a loss of attorney-client privilege) is reasonably acceptable to Parent and (y) the Company may limit physical access to or (C) enter into a joint defense agreement or implement such other techniques if the properties, offices and other facilities parties determine that doing so would reasonably permit the disclosure of such information without violating applicable law or jeopardizing such privilege. None of the Company and its Subsidiaries to Parent Parties nor any of their officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors or other advisors shall conduct any environmental testing or sampling on any of the extent the Company reasonably determines, in light of COVID-19, that such access would jeopardize the health and safety of any employee business or property sites of the Company or its Subsidiaries or subsidiaries prior to the extent necessary to comply with applicable Lawscompletion of the Merger without the prior written consent of the Company, which consent shall not be unreasonably withheld.
(b) Without limiting the generality of the foregoing, the Company covenants and agrees that, between the date of this Agreement and the Effective Time, the Company shall keep Parent reasonably informed as to the Company’s FDA regulatory strategy with respect to non-immaterial communications with FDA, pre-submissions to FDA, submissions to FDA, and any other regulatory issues under consideration for presentation to FDA, including IDEs, clinical trials (whether new or on-going), and medical technology, including by providing copies of material information to Parent; provided, that the Company shall not be required to provide such information to the extent providing such information would result in the loss of attorney-client privilege of the Company or any of its Subsidiaries (provided that the Company and its Subsidiaries shall use their reasonable best efforts to provide such information in a manner that does not result in a loss of attorney-client privilege). In order to keep Parent reasonably informed regarding the Company’s regulatory relationship with FDA, the Company also agrees to in a reasonably timely manner provide Parent with any and all material communications with FDA with respect to its pre-submissions, submissions, and other non-immaterial regulatory issues such as IDEs, clinical trials (whether new or on-going), medical technology and any other subject which would likely have a material impact on the Company’s current or future business. Nothing contained in this Section 7.03(b) is intended to give Parent, directly or indirectly, the right to control or direct the FDA regulatory strategy of the Company or its Subsidiaries prior to the Effective Time.
(c) Except as otherwise prohibited by applicable Law, from the date of this Agreement until the Effective Time, Parent shall, and shall cause its Subsidiaries to, provide to the Company and the Company’s Representatives reasonable access during normal business hours upon reasonable prior notice to Parent’s personnel and records on a basis consistent with the Company’s access to such personnel and records prior to the date hereof in connection with the Company’s due diligence review of Parent and its Subsidiaries in connection with the Transactions.
(d) All Any information obtained by the parties hereto pursuant to Parent Parties or the Company or their respective directors, officers, employees, representatives, consultants, attorneys, agents, lenders, bankers, financial advisors and other advisors under this Section 7.03 5.2 shall be kept confidential subject to the confidentiality and use restrictions contained in accordance with that certain letter agreement between the Company and Parent dated March 26, 2010 (the “Confidentiality Agreement”).
(e) No investigation pursuant to this Section 7.03 shall affect any representation, warranty, covenant or agreement in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
Appears in 1 contract
